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Full text of "Arkansas Code, Advance Service 3"

F 




Pamphlet Number 3 
March 2013 



Updates the 2011 Supplement 



Prepared 

of the 




Staff 



€' 



LexisNexis 



Arkansas Code 

OF 1987 

Annotated 




Prepared by the Editorial Staff of the Publisher 

Under the Direction and Supervision of the 

ARKANSAS CODE REVISION COMMISSION 

Senator David Johnson, Chair 

Senator David Burnett 

Representative John Vines 

Representative Darrin Williams 

Honorable Bettina E. Brownstein 

Honorable Don Schnipper 

Honorable David R. Matthews 

Honorable Stacy Leeds, Dean, University of Arkansas at 

Fayetteville, School of Law 

Honorable Paula Casey, Dean, University of Arkansas at 

Little Rock, School of Law 

Honorable Warren T. Readnour, Senior Assistant Attorney General 

Honorable Matthew Miller, Assistant Director for Legal Services of 

the Bureau of Legislative Research 

LexisNexis @ 



Copyright © 2013 

BY 

The State of Arkansas 



All Rights Reserved 

LexisNexis and the Knowledge Burst logo are registered trademarks, and Michie is a trademark 
of Reed Elsevier Properties Inc. used under license. Matthew Bender is a registered trademark of 
Matthew Bender Properties Inc. 



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LexisNexis 9 



Matthew Bender & Company, Inc. 

701 East Water Street, Charlottesville, VA 22902 

www. lexisnexis.com 



(Pub.40795) 



PREFACE 

The 2012-2013 Advance Code Service keeps the Arkansas Code of 
1987 Annotated as current as possible by providing notes to cases and 
law reviews, and updated table and index entries, as well as other 
pertinent information, in the interim period between the publication of 
Supplements to the Code. Each Advance Code Service pamphlet is 
cumulative and may be recycled or discarded upon receipt of the next 
pamphlet. 

Material in the Advance Code Service follows the structure of the 
Arkansas Code of 1987 Annotated and should be used in conjunction 
with the Code and its 2011 Supplement. A stylistic change has been 
made to the note analyses but the content is the same. 

This pamphlet contains updates to the legislation enacted by the 
Arkansas General Assembly at the 2011 Regular Session and the 2012 
Fiscal Session. 

Annotations are to the following sources: 

Arkansas Supreme Court and Arkansas Court of Appeals Opinions 
through 2013 Ark. LEXIS 40 (January 31, 2013) and 2013 Ark. App. 
LEXIS 69 (January 30, 2013). 

Federal Supplement through November 5, 2012. 

Federal Reporter 3d Series through December 6, 2012. 

United States Supreme Court Reports through November 5, 2012. 

Bankruptcy Reporter through December 3, 2012. 

Arkansas Law Notes through the 2008 Edition. 

Arkansas Law Review through Volume 61, p. 787. 

University of Arkansas at Little Rock Law Review through Volume 
30, p. 267. 

ALR 6th through Volume 74, p. 549. 

ALR Fed. 2d through Volume 64, p. 255. 

Visit the LexisNexis website at www.lexisnexis.com for an on-line 
bookstore, technical support, customer service and other company 
information. 

For further information or assistance, please call us toll free at 
1-800-833-9844, fax us at 1-800-643-1280, e-mail us at 
customer.support@bender.com, or write: Arkansas Code Editor, 
LexisNexis, 701 East Water Street, Charlottesville, Virginia, 22902. 

LexisNexis 

iii 



TITLE 1 
GENERAL PROVISIONS 

CHAPTER 2 
THE CODE AND REGULATIONS 



Subchapter 1 — General Provisions 

1-2-115. Code classification and organization not to be con- 
strued — Notes, headings, etc., not part of law. 

CASE NOTES 



Separate Subchapters Not Determi- 
native 

Fact that the Code Revision Commis- 
sion placed the statutes pertaining to 
cable-television companies in a separate 
subchapter during the codification process 
did not mean that the intangible personal 
property of cable-television companies 



was not subject to ad-valorem assessment 
and taxation under § 26-26-1606(b). Fal- 
con Cable Media LP v. Ark. PSC, 2012 
Ark. 463, — S.W.3d — , 2012 Ark. LEXIS 
501 (Dec. 13, 2012). 

Cited: McMillan v. Live Nation Entm't, 
Inc., 2012 Ark. 166, — S.W.3d — (2012). 



Subchapter 3 — Arkansas Code Revision Commission 



1-2-303. Powers and duties. 



CASE NOTES 



Authority to Change the Code 

Intangible personal property of a cable 
television company, including franchise 
agreements, customer relationships, and 
good will, was subject to ad-valorem as- 
sessment and taxation under § 26-26- 
1606(b). The words "this subchapter" in 
§ 26-26-1606 should be read to mean "this 



act," as they did prior to changes by the 
Arkansas Code Revision Commission, and 
therefore included all companies subject 
to taxation by the Arkansas Public Service 
Commission. Falcon Cable Media LP v. 
Ark. PSC, 2012 Ark. 463, — S.W.3d — , 
2012 Ark. LEXIS 501 (Dec. 13, 2012). 



1-5-107 AGRICULTURE 2 

CHAPTER 5 
HOLIDAYS AND OBSERVANCES 

1-5-107. Confederate Flag Day. 

RESEARCH REFERENCES 

ALR. Propriety of Prohibition of Dis- 
play or Wearing of Confederate Flag. 66 
A.L.R.6th 493. 

TITLE 2 
AGRICULTURE 

SUBTITLE 3. LIVESTOCK 

CHAPTER. 

35. MARKETING, SALE, AND TRANSPORTATION. 

SUBTITLE 3. LIVESTOCK 

CHAPTER 35 
MARKETING, SALE, AND TRANSPORTATION 

subchapter. 
3. Arkansas Beef Council. 

Subchapter 3 — Arkansas Beef Council 

section. 

2-35-303. Creation — Members — Orga- 
nization. 

2-35-303. Creation — Members — Organization. 

(a) The Arkansas Beef Council is created. 

(b)(1) The council shall be composed of seven (7) members appointed 
by the Governor and confirmed by the Senate as follows: 

(A) Three (3) cattle producer members shall represent the Arkan- 
sas Farm Bureau Federation and shall be appointed from a list of 
names submitted by the board of directors of that organization; 

(B) Three (3) cattle producer members shall represent the Arkan- 
sas Cattlemen's Association and shall be appointed from a list of 
names submitted by the board of directors of that organization; and 

(C) One (1) member shall be an active Arkansas livestock market 
operator who shall be appointed from the state at large. 

(2) Each year, not less than thirty (30) days prior to the expiration of 
the terms of the current council members whose terms expire in that 



3 BEER AND WINE — MANUFACTURE, SALE, ETC. 3-5-1102 

year, the organizations named shall submit to the Governor two (2) 
nominees for each position to be filled on the council from the respective 
organizations. The Governor shall appoint a succeeding member to the 
council from each organization's list of nominees. 

(3) Each member selected shall serve for a term of three (3) years and 
until his or her successor is duly selected as provided in this section. 

(4) Vacancies in any unexpired term shall be filled by the Governor 
for the remainder of the unexpired term. The member appointed to fill 
the vacancy shall represent the same organization as the person whose 
term is unexpired. 

(c) Members of the council shall meet and organize immediately 
after their appointment and shall elect a chair, a vice chair, and a 
secretary-treasurer from the membership of the council whose duties 
shall be those customarily exercised by those officers or specifically 
designated by the council. 

(d) The council may establish rules and regulations for its own 
government and for the administration of the affairs of the council. 

History. Acts 1983, No. 160, § 2; A.S.A. Publisher's Notes. This section is be- 
1947, § 78-1902. ing set out to reflect a correction in (b)(1). 

TITLE 3 
ALCOHOLIC BEVERAGES 

CHAPTER. 

5. BEER AND WINE — MANUFACTURE, SALE, AND TRANSPORTATION 

GENERALLY. 
9. ON-PREMISES CONSUMPTION. 

CHAPTER 5 

BEER AND WINE — MANUFACTURE, SALE, AND 
TRANSPORTATION GENERALLY 

subchapter. 
11. Beer — Wholesalers and Suppliers. 

Subchapter 11 — Beer — Wholesalers and Suppliers 

section. 

3-5-1102. Definitions. 

3-5-1102. Definitions. 

(a) The following words or phrases, or the plural thereof, whenever 
they appear in this subchapter shall have, unless the context clearly 
requires otherwise, the meanings ascribed to them in this section: 



3-5-1102 ALCOHOLIC BEVERAGES 4 

(1) "Agreement" means any agreement between a wholesaler and a 
supplier, whether oral or written, whereby a wholesaler is granted the 
right to purchase and sell a brand or brands of beer sold by a supplier; 

(2) "Ancillary business" means: 

(A) A business owned by the wholesaler, by a substantial stock- 
holder of a wholesaler, or by a substantial partner of a wholesaler the 
primary business of which is directly related to the transporting, 
storing, or marketing of the brand or brands of beer of a supplier with 
whom the wholesaler has an agreement; or 

(B) A business owned by a wholesaler, a substantial stockholder of 
a wholesaler, or a substantial partner of a wholesaler which recycles 
empty beverage containers of the supplier; 

(3) "Beer" includes light wine and shall carry the same definitions as 
set forth in § 3-5-202(3) and (4); 

(4) "Designated member" means and includes: 

(A) The spouse, child, grandchild, parent, brother, or sister of a 
deceased individual who owned an interest, including a controlling 
interest, in a wholesaler; 

(B) Any person who inherits under the deceased individual's will 
or under the laws of intestate succession of this state; 

(C) Any person or entity which has through a valid testamentary 
device by the deceased individual succeeded the deceased individual's 
ownership interest in the wholesaler pursuant to a written contract 
or instrument which has been previously approved by a supplier; 

(D) The appointed and qualified personal representative and the 
testamentary trustee of a deceased individual owning an ownership 
interest in a wholesaler; and 

(E) The person appointed by a court as the guardian or conservator 
of the property of an incapacitated individual owning an ownership 
interest in a wholesaler; 

(5) "Director" means the Director of the Alcoholic Beverage Control 
Division; 

(6) "Good faith" means honesty in fact and the observance of reason- 
able commercial standards of fair dealing in the trade, as defined in and 
interpreted under the Uniform Commercial Code, § 4-1-201; 

(7) "Reasonable qualifications" means the standard of the reasonable 
criteria established and consistently used by the respective supplier for 
similarly situated wholesalers that entered into, continued, or renewed 
an agreement with the supplier during a period of twenty-four (24) 
months prior to the proposed transfer of the wholesaler's business, or 
for similarly situated wholesalers who have changed managers or 
designated managers during a period of twenty-four (24) months prior 
to the proposed change in the manager or successor manager of the 
wholesaler's business; 

(8) "Retaliatory action" means the refusal to continue an agreement, 
or a material reduction in the quality of service or quantity of products 
available to a wholesaler under an agreement, which refusal or reduc- 
tion is not made in good faith; 



5 BEER AND WINE — MANUFACTURE, SALE, ETC. 3-5-1102 

(9) "Sales territory" means an area of exclusive sales responsibility 
for the brand or brands of beer sold by a supplier as designated by an 
agreement; 

(10) "Similarly situated wholesalers" means wholesalers of a sup- 
plier that are of a generally comparable size, and operate in markets 
with similar demographic characteristics, including population size, 
density, distribution, and vital statistics, as well as reasonably similar 
economic and geographic conditions; 

(11) "Substantial stockholder or substantial partner" means a stock- 
holder of or partner in the wholesaler who owns an interest of ten 
percent (10%) or more of the partnership or of the capital stock of a 
corporate wholesaler; 

(12)(A) "Supplier" means a manufacturer or importer of beer and 
light wine brands as registered with the director. 

(B) "Supplier" does not include a small brewery under the Arkan- 
sas Native Brewery Act, § 3-5-1401 et seq.; 

(13) "Transfer of wholesaler's business" means the voluntary sale, 
assignment, or other transfer often percent (10%) or more or control of 
the business or all or substantially all of the assets of the wholesaler, or 
ten percent (10%) or more or control of the capital stock of the 
wholesaler, including, without limitation, the sale or other transfer of 
capital stock or assets by merger, consolidation, or dissolution, or of the 
capital stock of the parent corporation, or of the capital stock or 
beneficial ownership of any other entity owning or controlling the 
wholesaler; and 

(14) "Wholesaler" means a wholesaler of beer and light wine as 
licensed by the Alcoholic Beverage Control Board and as denned in 
§ 3-5-202(10). 

(b) Other words and phrases used in this subchapter shall have the 
meanings ascribed to them in §§ 3-1-102 and 3-5-202, as amended, and 
any acts amendatory thereof, supplementary thereto, or substituted 
therefor unless the context clearly requires otherwise. 

History. Acts 1991, No. 8, § 2; 1991, Amendments. The 2011 amendment 
No. 866, § 2; 2011, No. 982, § 1. inserted present (a)(12)(B). 

Publisher's Notes. This section is be- 
ing set out to reflect a correction to the 
2011 supplement. 



3-8-306 ALCOHOLIC BEVERAGES 6 

CHAPTER 8 
LOCAL OPTION 

Subchapter 3 — Proceedings Pursuant to 1935 Act 

3-8-306. Certificate of election results. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- riods Governing Election Contests. 60 
cation of State Statutory Limitations Pe- A.L.R.6th 481. 

3-8-309. Contests of elections. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- riods Governing Election Contests. 60 
cation of State Statutory Limitations Pe- A.L.R.6th 481. 

CHAPTER 9 
ON-PREMISES CONSUMPTION 

subchapter. 
2. Alcoholic Beverages Generally. 

Subchapter 2 — Alcoholic Beverages Generally 

SECTION. 

3-9-202. Definitions. 

3-9-202. Definitions. 

As used in this subchapter, unless the context otherwise requires: 

(1) "Alcoholic beverages" means all intoxicating liquors of any sort, 
other than beer and wine as described and regulated in §§ 3-5-301 — 
3-5-307, and 3-9-301 et seq., respectively; 

(2) "Bed and breakfast private club" means a corporation, partner- 
ship, individual, or limited liability corporation whose primary function 
is to provide overnight accommodations to the public, not exceeding a 
total of twenty (20) guest rooms on the premises, whether operated by 
the business owner or not, where the owner or a person representing 
the owner lives on the premises, where a breakfast meal is served to the 
lodging guest, and where no restaurant on the premises is open to the 
public except for the lodging guest; 

(3) "Board" means the Alcoholic Beverage Control Board of this state, 
or its successor agency; 

(4) "City" means any city of the first class or city of the second class 
in this state; 



7 ON-PREMISES CONSUMPTION 3-9-202 

(5) "Director" means the Director of the Alcoholic Beverage Control 
Division; 

(6) "Dry area" means any area in which the manufacture or sale of 
intoxicating liquor is prohibited by a local option election heretofore or 
hereafter held pursuant to the Initiated Act; 

(7) "Hotel" means every building or other structure commonly re- 
ferred to as a hotel, motel, motor hotel, motor lodge, or by similar name, 
which is kept, used, maintained, advertised, and held out to the public 
to be a place where food is actually served and consumed and sleeping 
accommodations are offered for adequate pay to travelers or guests, 
whether transient, permanent, or residential, in which fifty (50) or 
more rooms are used for the sleeping accommodations of such guests, 
and having one (1) or more public dining rooms with adequate and 
sanitary kitchen facilities, and a seating capacity for at least fifty (50) 
persons, where meals are regularly served to such guests, such sleeping 
accommodations and dining room being conducted in the same building 
or in separate buildings or structures used in connection therewith that 
are on the same premises and are a part of the hotel operation; 

(8) "Initiated Act" means Initiated Act No. 1 of 1942, as amended, 
§§ 3-8-201 — 3-8-203 and 3-8-205 — 3-8-209, which establishes the 
procedure for local option elections to prohibit the manufacture or sale 
of intoxicating liquor; 

(9) "Large event facility" means a facility that houses convention 
center activity, tourism activity, trade show and product display and 
related meeting activity, or any other similar large meeting or atten- 
dance activity and that either itself or through one (1) or more 
independent contractors complies with all of the following: 

(A) Serves full and complete meals and food on the premises; 

(B) Has one (1) or more places for food service on the premises with 
a seating capacity for not fewer than five hundred (500) people; and 

(C) Employs a sufficient number and kind of employees to serve 
meals and food on the premises capable of handling at least five 
hundred (500) people; 

(10) "On-premises consumption" means the sale of alcoholic bever- 
ages by the drink or in broken or unsealed containers for consumption 
on the premises where sold; 

(11) "Person" means any natural person, partnership, association, or 
corporation; 

(12)(A)(i) "Private club" means a nonprofit corporation organized and 
existing under the laws of this state, no part of the net revenues of 
which shall inure directly or indirectly to the benefit of any of its 
members or any other individual, except for the payment of bona fide 
expenses of the club's operations, and which is conducted for some 
common recreational, social, patriotic, political, national, benevolent, 
athletic, community hospitality, professional association, entertain- 
ment, or other nonprofit object or purpose other than the consump- 
tion of alcoholic beverages. 



3-9-202 ALCOHOLIC BEVERAGES 8 

(ii) The nonprofit corporation shall have been in existence for a 
period of not less than one (1) year before applying for a permit, as 
prescribed in this subchapter. 

(iii) At the time of application for the permit, the nonprofit 
corporation must have not fewer than one hundred (100) members 
and at the time of application must own or lease, be the holder of a 
buy-sell agreement or offer and acceptance, or have an option to lease 
a building, property, or space therein for the reasonable comfort and 
accommodation of its members and their families and guests and 
restrict the use of club facilities to those persons. 

(B) For purposes of this subdivision (12), a person shall be required 
to become a member of the private club in any wet area of the state 
only upon ordering an alcoholic beverage as defined under subdivi- 
sion (1) of this section. 

(C) Furthermore, where the business entity that holds a private 
club permit additionally holds a retail beer permit, retail wine for 
consumption on the premises permit, or cafe or restaurant wine 
permit, the hours of operation authorized for the private club shall 
likewise apply to all permits of the business entity; 

(13) "Referendum election" means an election held as provided in 
this subchapter, at which the electors of a city or county shall vote on 
the question of authorizing, as provided herein, the sale of alcoholic 
beverages for on-premises consumption in those areas of the city or 
county in which the lawful sale of alcoholic beverages has not been 
prohibited by a local option election held pursuant to the Initiated Act; 
and 

(14) "Restaurant" means any public or private place: 

(A)(i) Kept, used, maintained, advertised, and held out to the 
public or to a private or restricted membership as a place where 
complete meals are served and where complete meals are actually 
and regularly served, without sleeping accommodations, such a place 
being provided with adequate and sanitary kitchen and dining 
equipment and a seating capacity of at least fifty (50) people and 
having employed therein a sufficient number and kind of employees 
to prepare, cook, and serve suitable food for its guests or members. 

(ii) At least one (1) meal per day shall be served, and the place 
shall be open a minimum of five (5) days per week, with the exception 
of holidays, vacations, and periods of redecorating; or 

(B)(i) Which qualifies as a "large meeting or attendance facility", 
which is defined, without limitation, as a facility housing convention 
center activity, tourism activity, trade show and product display and 
related meeting activity, or any other similar large meeting or 
attendance activity and which either itself or through one (1) or more 
independent contractors complies with all of the following: 

(a) Actually serves full and complete meals and food on the 
premises; 

(b) Has one (1) or more places for food service on the premises with 
a seating capacity for not fewer than five hundred (500) people; 



9 ON-PREMISES CONSUMPTION 3-9-202 

(c) Employs a sufficient number and kind of employees to serve 
meals and food on the premises capable of handling at least five 
hundred (500) people; and 

(d) Serves alcoholic beverages on the premises at one (1) or more 
places only on days that meals and food are served at one (1) or more 
places on the premises. 

(ii)(a) Any on-premises restaurant permittee as licensed by subdi- 
vision (14)(A) of this section and any hotel or motel on-premises 
permittee as licensed by subdivision (7) of this section shall be 
allowed to serve alcoholic beverages purchased under its permit at 
any large meeting or attendance facility which is licensed under this 
subdivision (14)(B). Hotel, motel, and restaurant permittees may 
serve alcoholic beverages purchased under their permits only when 
they have first secured written permission from the permittee of the 
large meeting or attendance facility. Otherwise, alcoholic beverage 
service at the large meeting or attendance facility shall be from 
inventory purchased by the large meeting or attendance facility 
permittee. 

(b) Written permission shall not be granted for more than a 
five-day period. The Alcoholic Beverage Control Division shall be 
given a copy of any such written agreement. Any violations which 
occur while such permission is being used shall lie against the hotel, 
motel, or restaurant using such permission. 

(c) Any hotel, motel, or restaurant that serves its alcoholic bever- 
ages at a large meeting or attendance facility shall only do so 
pursuant to a satellite catering permit to be issued by the division for 
an annual fee of five hundred dollars ($500) per fiscal year or part 
thereof. The permit shall be applied for on forms as prescribed by the 
board. 

(d) The board shall promulgate such regulations as it deems 
necessary to implement subdivisions (14)(B)(ii)(a)-(c) of this section. 

(iii) When a large attendance facilities permit has been issued to a 
government-owned facility located in a county that has a population 
of more than one hundred fifty-five thousand (155,000) according to 
the 2000 Federal Decennial Census, Arkansas-licensed beer whole- 
salers shall be allowed to pay for advertising devices used at the 
government-owned facility. Such advertising devices shall include 
items such as inside or outside signs, scoreboards, programs, score- 
cards, and the like. Provided, if such advertising by the beer whole- 
saler results in the formation or existence of an exclusive buying 
arrangement by the large attendance facilities permittee and the 
wholesaler who furnishes such items, then such an exclusive buying 
arrangement will be a violation of the large attendance facilities 
permit and the wholesale beer permit involved even if the arrange- 
ments are caused by third parties. To the extent that § 3-5-214 or any 
other law could be interpreted to preclude such advertising arrange- 
ments allowed in this subdivision (14)(B)(iii), they are held inappli- 
cable. 



3-9-202 ALCOHOLIC BEVERAGES 10 

(iv)(a) When a large attendance facilities permit has been issued to 
a facility owned or operated by the owner of a professional sports 
team franchised by Minor League Baseball and within a county that 
has a population of more than one hundred fifty-five thousand 
(155,000) according to the 2000 Federal Decennial Census, the 
operator of the facility may accept sponsorship funds, advertising 
items, or promotional items from licensed beer wholesalers. Promo- 
tional items shall include items used by the facility to promote 
attendance. 

(b) However, if the use of sponsorship funds, advertising items, or 
promotional items by the beer wholesaler results in the formation or 
existence of an exclusive buying arrangement by the large atten- 
dance facilities permittee and the wholesaler who furnishes the 
sponsorship funds, advertising items, or promotional items, then the 
exclusive buying arrangement will be a violation of the large atten- 
dance facilities permit and the wholesaler's wholesale beer permit 
even if the arrangements are caused by third parties. 

(c) Section 3-5-214 or any other law that could be interpreted to 
preclude arrangements to use the sponsorship funds, advertising 
items, or promotional items allowed in this subdivision (14)(B)(iv) 
shall not apply to this subdivision (14)(B)(iv). 

History. Acts 1969, No. 132, § 2; 1985, 2003, No. 1813, § 1; 2005, No. 445, § 1; 
No. 384, § 1; A.S.A. 1947, § 48-1402; Acts 2007, No. 642, § 1; 2011, No. 1194, § 2. 



1989, No. 295, § 3; 1989, No. 837, § 1 
1989, No. 953, § 1; 1993, No. 403, § 2 
1995, No. 536, § 2; 1995, No. 600, § 1 
1999, No. 1063, § 1; 1999, No. 1371, § 1 
1999, No. 1597, § 1; 2003, No. 369, § 1 



Publisher's Notes. This section is be- 
ing set out to reflect a correction in 
(14)(B)(ii)(a) in the 2011 supplement. 

Amendments. The 2011 amendment 
added present (9). 



CASE NOTES 

Private Clubs. Beverage Control Division Board's inter- 
Approval of a private-club permit was pretation of subdivision (12)(A)(i) was en- 
proper because a club established that it titled to deference, and arguments relat- 
had a nonprofit purpose other than the i n g to nonprofit status that were not fully 
consumption of alcohol under subdivision developed before the Board were not pre- 
(12)(A)(i) of this section where it operated ser ved for appellate review. Barnes v. Ark. 
in conjunction with a restaurant and was Dep 't of Fin. & Admin., 2012 Ark. App. 

designed to enhance the dining experi- 237 SW3d (2012) 

ence. Moreover, the Arkansas Alcoholic 



11 SALES 4-2-703 

TITLE 4 
BUSINESS AND COMMERCIAL LAW 

SUBTITLE 1. UNIFORM COMMERCIAL CODE 

CHAPTER 2 
SALES 

Part 2 — Form, Formation, and Readjustment of Contract 

4-2-201. Formal requirements — Statute of frauds. 

CASE NOTES 

Enforceable Contract. of the contract; there were competent par- 
Trial court erred under subdivision ties, subject matter, consideration, agree- 
(3)(c) of this section in finding that no ment, and mutual obligation. Bowen v. 
valid contract existed between a buyer Gardner, 2013 Ark. App. 52, — S.W.3d — , 
and a machine seller because there was a 2013 Ark. App. LEXIS 69 (Jan. 30, 2013). 
meeting of the minds as to the basic terms 

Part 3 — General Obligation and Construction of Contract 

4-2-302. Unconscionable contract or clause. 

CASE NOTES 

Contract Not Unconscionable. have found it void and unenforceable un- 

Grant of summary judgment in favor of der subdivision (1) of this section. He 

a corporation in its action against the offered no proof to the circuit court that 

personal guaranty was proper, in part the guaranty was unconscionable. Welsh 

because the guaranty's mere conclusory v# Mid-South Bulk Servs., 2011 Ark. App. 

allegations that the guaranty was uncon- 728 S.W.3d (2011). 

scionable were insufficient for the court to 

Part 7 — Remedies 

4-2-703. Seller's remedies in general. 

CASE NOTES 

Damages. another purchaser under subsection (d) of 

Trial court did not err holding that a this section after the buyer declined to 

buyer was entitled to the return of $ purchase it, that amount was properly 

15,454 in a breach of contract action subtracted from the buyer's $ 25,860 down 

against a shaving mill seller; because the payment. Bowen v. Gardner, 2013 Ark. 

seller spent $ 10,406 in additional ex- App. 52, — S.W.3d — , 2013 Ark. App. 

penses to make the machine salable to LEXIS 69 (Jan. 30, 2013). 



4-2-706 BUSINESS AND COMMERCIAL LAW 

4-2-706. Seller's resale including contract for resale. 

CASE NOTES 



12 



Damages. 

Trial court did not err holding that a 
buyer was entitled to the return of $ 
15,454 in a breach of contract action 
against a shaving mill seller; because the 
seller spent $ 10,406 in additional ex- 
penses to make the machine salable to 



another purchaser after the buyer de- 
clined to purchase it, that amount was 
properly subtracted from the buyer's $ 
25,860 down payment pursuant to subsec- 
tion (1) of this section. Bowen v. Gardner, 
2013 Ark. App. 52, — S.W.3d — , 2013 Ark. 
App. LEXIS 69 (Jan. 30, 2013). 



4-2-708. Seller's damages for non-acceptance or repudiation. 

CASE NOTES 



Measure of Damages. 

Where a buyer repudiated a concrete 
supply contract, the seller was properly 
denied damages as a lost volume seller 
because testimony from the seller's gen- 
eral manager showed that the seller was 
not a lost volume seller since it would 



have had a limited capacity to perform 
other contracts if the buyer had not 
breached the contract upon learning that 
the concrete was substandard. Razorback 
Concrete Co. v. Dement Constr. Co., LLC, 
688 F.3d 346 (8th Cir. 2012). 



4-2-725. Statute of limitations in contracts for sale. 



CASE NOTES 



Analysis 

Applicability. 
Claim Barred. 

Applicability. 

Appellants' warrant claims were barred 
by the limitations period of the Arkansas 
Product Liability Act, § 16-116-103, in- 
stead of the limitations period of the Uni- 
form Commercial Code in this section, 
because a claim for the costs of repairing 
the buses with corroded flooring would be 
a claim for property damage within the 
meaning of the Act, § 16-116-102(5). IC 
Corp. v. Hoover Treated Wood Prods., 2011 
Ark. App. 589, — S.W.3d — (2011). 

Court of appeals did not need to decide 
whether appellants' claims for "economic 
loss" were covered by this section, the 
Uniform Commercial Code, instead of the 
Arkansas Product Liability Act, § 16-116- 
103, because appellants failed to plead or 
present evidence as to its lost profits or 
lost goodwill, matters that had to be spe- 
cifically pled under Ark. R. Civ. P. 9(g). IC 



Corp. v. Hoover Treated Wood Prods., 2011 
Ark. App. 589, — S.W.3d — (2011). 

Even if the court interpreted the buyer's 
limited promotional duty as creating a 
"mixed" contract for the sale of goods and 
services, the agreement was fundamen- 
tally one for the sale of goods, and the 
Uniform Commercial Code governed; 
therefore, the four-year statute of limita- 
tions applied to the supplier's breach of 
contract claim. B & B Hardware, Inc. v. 
Fastenal Co., — F.3d — , 2012 U.S. App. 
LEXIS 17540 (8th Cir. Aug. 21, 2012). 

Claim Barred. 

Statute of limitations began to run no 
later than June 2005, when the supplier 
alleged that the buyer failed to perform as 
required by the agreement; because the 
complaint was filed on May 3, 2010, well 
more than four years after the alleged 
breach in June 2005, the statute of limi- 
tations barred the breach-of-contract 
claim. B & B Hardware, Inc. v. Fastenal 
Co., — F.3d — , 2012 U.S. App. LEXIS 
17540 (8th Cir. Aug. 21, 2012). 



13 FUNDS TRANSFERS 4-4A-101 

CHAPTER 3 
NEGOTIABLE INSTRUMENTS 

Part 1 — General Provisions and Definitions 

4-3-115. Incomplete instrument. 

CASE NOTES 

Authority. sections (a) and (d) of this section, was 

Trial court properly determined that a completed without authority; as the 

decedent's companion did not convert the change was deemed authorized, the check 

decedent's funds when she deposited a was not an altered instrument under § 4- 

check into her account, as the decedent's 3-407(a). Hankins v. Austin, 2012 Ark. 

estate failed to show that the check, which App. 641, — S.W.3d — , 2012 Ark. App. 

was an incomplete instrument under sub- LEXIS 743 (Nov. 7, 2012). 

Part 4 — Liability of Parties 

4-3-407. Alteration. 

CASE NOTES 

Validity Between Parties. 3- 115(a) and (d), was completed without 

Trial court properly determined that a authority; as the change was deemed au- 

decedent's companion did not convert the thorized, the check was not an altered 

decedent's funds when she deposited a instrument under subsection (a) of this 

check into her account, as the decedent's section. Hankins v. Austin, 2012 Ark. App. 

estate failed to show that the check, which 641, — S.W.3d — , 2012 Ark. App. LEXIS 

was an incomplete instrument under § 4- 743 (Nov. 7, 2012). 

CHAPTER 4A 
FUNDS TRANSFERS 

Part 1 — Subject Matter and Definitions 

4-4A-101. Short title. 

RESEARCH REFERENCES 

ALR. Construction and Application to tide 4A on Attachment, Garnishment, 

Immediate Parties of Uniform Commer- Forfeiture or Other Third-Party Process 

cial Code Article 4A Governing Funds Against Funds Transfers. 66 A.L.R.6th 

Transfers. 62 A.L.R.6th 1. 567. 

Effect of Uniform Commercial Code Ar- 



4-4A-102 BUSINESS AND COMMERCIAL LAW 14 

4-4A-102. Subject matter. 

RESEARCH REFERENCES 

ALR. Construction and Application to tide 4A on Attachment, Garnishment, 

Immediate Parties of Uniform Commer- Forfeiture or Other Third-Party Process 

cial Code Article 4A Governing Funds Against Funds Transfers. 66 A.L.R.6th 

Transfers. 62 A.L.R.6th 1. 567. 

Effect of Uniform Commercial Code Ar- 

CHAPTER 8 
INVESTMENT SECURITIES 

Part 1 — Short Title and General Matters 

4-8-107. Whether indorsement, instruction, or entitlement or- 
der is effective. 

CASE NOTES 

Elements of Claim. kansas Deceptive Trade Practices Act 

Because a breach of contract, in and of claims. B & B Hardware, Inc. v. Fastenal 

itself, was not tortious, the supplier had Co., — F.3d — , 2012 U.S. App. LEXIS 

no cognizable tortious interference or Ar- 17540 (8th Cir. Aug. 21, 2012). 

CHAPTER 9 
SECURED TRANSACTIONS 

Part 1 — General Provisions 

Subpart 1 
Short Title, Definitions, and General Concepts 



4-9-101. Short title. 

RESEARCH REFERENCES 

ALR. Consignment Transactions Under 
Uniform Commercial Code Article 9 on 
Secured Transactions. 58 A.L.R.6th 289. 



15 SECURED TRANSACTIONS 4-9-203 

4-9-102. Definitions and index of definitions. 

RESEARCH REFERENCES 

ALR. Consignment Transactions Under 
Uniform Commercial Code Article 9 on 
Secured Transactions. 58 A.L.R.6th 289. 

4-9-103. Purchase-money security interest — Application of 
payments — Burden of establishing. 

RESEARCH REFERENCES 

ALR. Consignment Transactions Under 
Uniform Commercial Code Article 9 on 
Secured Transactions. 58 A.L.R.6th 289. 

Subpart 2 
Applicability of Chapter 



4-9-109. Scope. 

RESEARCH REFERENCES 

ALR. Consignment Transactions Under 
Uniform Commercial Code Article 9 on 
Secured Transactions. 58 A.L.R.6th 289. 

Part 2 — Effectiveness of Security Agreement; Attachment of 
Security Interest; Rights of Parties to Security Agreement 

Subpart 1 
effectiveness and attachment 



4-9-203. Attachment and enforceability of security interest — 
Proceeds — Supporting obligations — Formal req- 
uisites. 

CASE NOTES 

Rights in Collateral. attach to those rights and, without attach- 

Bank's lien in stock pledged by bank- ment, perfection could not be accom- 

ruptcy debtors as security for loans was plished. Timberland Bancshares, Inc. v. 

unperfected since the debtors condition- Garrison (In re Lee), — B.R. — , 2011 

ally relinquished their transfer rights, Bankr. LEXIS 4387 (Bankr. W.D. Ark. 

and thus the security interest could not Nov. 16, 2011). 



4-9-204 BUSINESS AND COMMERCIAL LAW 16 

4-9-204. After-acquired property — Future advances. 

CASE NOTES 

After-Acquired Collateral. modify the rights of holders of secured 

Plan proposed by Chapter 12 debtors claims through their bankruptcy plan, 

which treated three security agreements that authorization was limited to modifi- 

they entered with a creditor separately by cations that complied with § 1225, and 

eliminating provisions in the agreements § 1225(a)(5)(B)(i)' s lien-retention re- 

that provided cross-collateralization vio- quirement encompassed cross-collateral- 

lated 11 U.S.C.S. § 1225(a)(5), and could ized property. In re Heath, 483 Bankr. 

not be confirmed. Although 11 U.S.C.S. 708, 2012 Bankr. LEXIS 5620 (Bankr. 

§ 1222(b)(2) authorized the debtors to E.D. Ark. July 3, 2012). 

Part 5 — Filing 

Subpart 1 
Filing Office — Contents and Effectiveness of Financing Statement 



4-9-513. Termination statement. 

RESEARCH REFERENCES 

ALR. Consignment Transactions Under 
Uniform Commercial Code Article 9 on 
Secured Transactions. 58 A.L.R.6th 289. 

SUBTITLE 3. CORPORATIONS AND ASSOCIATIONS 

CHAPTER 27 
BUSINESS CORPORATION ACT OF 1987 

Subchapter 2 — Incorporation 

4-27-204. Liability for preincorporation transactions. 

CASE NOTES 

Transfers. property to people purporting to act on 
This section did not support the compa-. behalf of a corporation, while knowing 
ny's argument that the warranty deed that the corporation did not exist. Buck- 
transferred the property to the individual eye Ret. Co., LLC v. Walter, 2012 Ark. App. 

as the business's principal, because the 257, S.W.3d (2012). 

statute did not address the transfer of real 



17 



BUSINESS CORPORATION ACT OF 1987 

Subchapter 6 — Shares and Distributions 

Part B: Issuance of Shares 



4-27-1501 



4-27-622. Liability of shareholders. 

CASE NOTES 



Shareholder Not Liable. 

Because the television network failed to 
allege any facts that would make the 
communications company liable for the 
broadcasting company's obligations under 
an intellectual property agreement, the 



district court properly dismissed the tele- 
vision network's claim against the com- 
munications company. Retro TV Network, 
Inc. v. Luken Communs., LLC, — F.3d — , 
2012 U.S. App. LEXIS 21569 (8th Cir. Oct. 
17, 2012). 



Subchapter 15 — Foreign Corporations 



Part A: Certificate of Authority 
4-27-1501. Authority to transact business required. 

CASE NOTES 



Analysis 

In General. 
Mortgages. 

In General. 

Arkansas Statutory Foreclosure Act in 
§ 18-50-102(a)(2) provides that a bank 
may be authorized to do business in Ar- 
kansas either by state or federal law; the 
Wingo Act, § 4-27-1501 et seq., specifies 
that a foreign corporation may obtain au- 
thority to transact business in Arkansas 
by obtaining a certificate from the Arkan- 
sas Secretary of State; and the Arkansas 
banking statutes provide that in some 
instances an out-of-state bank must ob- 



tain a certificate from the Arkansas Bank 
Commissioner. JPMorgan Chase Bank, 
N.A. v. Johnson, 470 B.R. 829 (Bankr. E.D. 
Ark. 2012). 

Mortgages. 

Section 18-50-117 required nonresident 
mortgagee to be authorized to do business 
in Arkansas, and noncompliance was not 
cured by an attorney-in-fact under § 18- 
50-102, not superseded by § 4-27-101 et 
seq., and not preempted by 12 U.S.C.S. 
§ 24 and 371 of the National Banking Act. 
Attorney's fees were awarded under § 16- 
22-308. In re Johnson, 460 B.R. 234 
(Bankr. E.D. Ark. 2011). 



4-29-309 BUSINESS AND COMMERCIAL LAW 

CHAPTER 29 
PROFESSIONAL CORPORATIONS 



18 



Subchapter 3 — Medical Corporation Act 

4-29-309. Certificate of registration — Issuance, renewal, etc. 

CASE NOTES 



Board Members As Government Offi- 
cers 

Defendant was properly given a six- 
level sentencing enhancement for the 
bombing and arson charges because the 
doctor/victim was an official victim under 
U.S. Sentencing Guidelines Manual 
§ 3A1.2(a), in that the doctor was a mem- 



ber of a state medical board, was targeted 
by defendant for his participation on the 
board, and under this section, the board 
had been assigned its powers by the state 
legislature. United States v. Mann, 701 
F.3d 274, 2012 U.S. App. LEXIS 24995 
(8th Cir. Dec. 6, 2012). 



CHAPTER 32 
SMALL BUSINESS ENTITY TAX PASS THROUGH ACT 

Subchapter 3 — Relations of Members and Managers to Persons 
Dealing with the Limited Liability Company 

4-32-301. Agency power of members and managers. 

CASE NOTES 



Liability. 

Debtor's judgment debt for breach of 
fiduciary duty was dischargeable because 
the fiduciary duty found by the state court 
and this section did not involve the same 
standards as 11 U.S.C.S. § 523(a)(4) and 
the creditors' business assets consisting of 



people, relationships, and efforts did not 
constitute a "definable res" for purposes of 
§ 523(a)(4). Clear Sky Props. LLC v. 
Roussel (In re Roussel), 483 Bankr. 915, 
2012 Bankr. LEXIS 5590 (Bankr. E.D. 
Ark. Dec. 3, 2012). 



4-32-304. Liability of members to third parties. 

CASE NOTES 



Fraud. 

Generally, the owner or agent of a lim- 
ited liability company is not liable for the 
debts of that company under this section; 
however, the protections afforded to a lim- 
ited liability company do not shield the 
owner or agent from liability for conduct 
that would justify a finding of fraud 
against that person individually. Under 



Arkansas law, a cause of action for fraud 
requires proof of five elements: (1) a false 
representation of material fact; (2) knowl- 
edge that the representation is false or 
that there is insufficient evidence upon 
which to make the representation; (3) in- 
tent to induce action or inaction in reli- 
ance upon the representation; (4) justifi- 
able reliance on the representation; and 



19 ASSIGNMENTS 4-58-105 

(5) damage suffered as a result of the 
reliance. Myers v. Dewese (In re Dewese), 
469 B.R. 314 (Bankr. E.D. Ark. 2012). 

SUBTITLE 4. PARTNERSHIPS 

CHAPTER 46 
UNIFORM PARTNERSHIP ACT (1996) 

Subchapter 1 — General Provisions 

4-46-101. Definitions. 

RESEARCH REFERENCES 

ALR. Construction and Application of 
Revised Uniform Partnership Act. 70 
A.L.R.6th 209. 

Subchapter 2 — Nature of Partnership 

4-46-202. Formation of partnership. 

CASE NOTES 

Joint Venture. Secretary of State's office, and there was 

Grain, collateral for a creditor's loan, no evidence the joint venture created 

belonged to debtors' estate and not the separate balance sheets or inventories, 

debtors' joint venture because the joint Ri ce v. Carlton Farms, LLC (In re Webb), 

venture was not a separate legal entity. _ B.R. — , 2012 Bankr. LEXIS 3382 

There was no evidence the joint venture (Bankr. E.D. Ark. July 3, 2012). 
was registered as a separate entity with 

SUBTITLE 5. CONTRACTS, NOTES, AND OTHER 
COMMERCIAL INSTRUMENTS 

CHAPTER 58 
ASSIGNMENTS 

4-58-105. Completion of assignments — Rights and remedies of 
debtor and subsequent assignees. 

CASE NOTES 

Relationship to Other Laws. when viewed in the context of the statute 

Subdivision (b)(2) of this section simply as a whole, did not reflect a legislative 

prescribed the legal effect when a party to intent to create the kind of express or 

an assigned account in good faith paid the technical trust required in the strict and 

assignor rather than the unknown as- narrow sense under 11 U.S.C.S. 

signee; the mere use of the word "trustee," § 523(a)(4), and therefore, the $65,000 



4-59-204 BUSINESS AND COMMERCIAL LAW 20 

debt was not nondischargeable under 11 company); thus, even if the settlement 

U.S.C.S. § 523(a)(4). Arvest Mortg. Co. v. proceeds from the builder were miscella- 

Nail (In re Nail), 680 F.3d 1036 (8th Cir. neous proceeds, debtor's alleged failure to 

2012). comply with the assignment provision was 

Assignment provision in the mortgage a dischargeable breach of contract, not a 

documents merely served as a collection nondischargeable embezzlement. Arvest 

device for miscellaneous proceeds (funds Mortg. Co. v. Nail (In re Nail), 680 F.3d 

owned by debtor that she was contractu- ^036 (g tn Qj r 2012) 
ally obligated to remit to the mortgage 

CHAPTER 59 
FRAUD 

Subchapter 2 — Fraudulent Transfers 

4-59-204. Transfers fraudulent as to present and future credi- 
tors. 

RESEARCH REFERENCES 

ALR. Purchase of Annuity by Debtor as 
Fraud on Creditors. 74 A.L.R.6th 549. 

4-59-205. Transfers fraudulent as to present creditors. 

RESEARCH REFERENCES 

ALR. Purchase of Annuity by Debtor as 
Fraud on Creditors. 74 A.L.R.6th 549. 

SUBTITLE 6. BUSINESS PRACTICES 

CHAPTER 71 
TRADEMARKS AND LABELS 

Subchapter 2 — Registration and Protection 

4-71-209. Cancellation. 

RESEARCH REFERENCES 

ALR. Application of Defense of Laches 
in Action to Cancel Trademark. 64 A.L.R. 
Fed. 2d 255. 



21 DECEPTIVE TRADE PRACTICES 4-88-107 

4-71-212. Infringement. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- 
cation of State Trademark Counterfeiting 
Statutes. 63 A.L.R.6th 303. 

SUBTITLE 7. CONSUMER PROTECTION 

CHAPTER 88 
DECEPTIVE TRADE PRACTICES 

Subchapter 1 — General Provisions 

4-88-101. Applicability of chapter. 

CASE NOTES 

Practice of Law. Practices Act (ADTPA), §§ 4-88-101 to 

Because a law firm and its attorneys 4-88-804, had no applicability to their 

were attorneys engaged in the practice of actions. The law firm was engaged in the 

law at the time of their alleged collection practice of law by engaging in settlement 

of amounts in excess of those set forth in negotiations for its clients. Bennett & De- 

§ 4-60-103 by a holder of a dishonored loney, PC. v. State Ex Rel. McDaniel, 2012 

check, the Arkansas Deceptive Trade Ark. 119, — S.W.3d — (2012). 

4-88-107. Deceptive and unconscionable trade practices gener- 
ally. 

CASE NOTES 

Scope. the authority to create a law that would 

In Preston v. Stoops, 373 Ark. 591, 285 control the practice of law. However, that 

S.W.3d 606, 2008 Ark. LEXIS 397 (2008), same protective rationale did not apply to 

the Arkansas Supreme Court dismissed the creditor here; it was a separate entity 

the client's claim against the attorney apart from the firm it hired to collect the 

because it found that the Arkansas Decep- debt, and Preston did not shield it from 

tive Trade Practices Act (ADTPA), § 4-88- debtor's ADTPA cause of action. Humes v. 

101 et seq., did not apply to the practice of LVNV Funding, L.L.C. (In re Humes), — 

law; the basis for this holding was that the B.R. — , 2011 Bankr. LEXIS 4857 (Bankr. 

Arkansas General Assembly did not have E.D. Ark. Dec. 20, 2011). 



4-90-204 CRIMINAL OFFENSES 22 

CHAPTER 90 
AUTOMOBILES 

Subchapter 2 — Odometer Regulations 

4-90-204. Preventing tampering. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- Validity, Construction, and Application 
cation of State Laws Concerning, Relating of State Laws Concerning, Relating to, or 
to, or Encompassing Disclosure of and Encompassing Disclosure of and Tamper- 
Tampering with Motor Vehicle Odometer ing with Motor Vehicle Odometer — Stat- 

— Validity of Statutory Provisions, Con- utes of Limitation, Parties to Action, Evi- 
structionof Statute and Particular Terms, dentiary Matters, and Particular 
and Remedies. 66 A.L.R.6th 351. Violations of Statute. 67 A.L.R.6th 209. 

4-90-206. Disclosure requirements on transfer of a motor ve- 
hicle. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- Validity, Construction, and Application 
cation of State Laws Concerning, Relating of State Laws Concerning, Relating to, or 
to, or Encompassing Disclosure of and Encompassing Disclosure of and Tamper- 
Tampering with Motor Vehicle Odometer ing with Motor Vehicle Odometer — Stat- 

— Validity of Statutory Provisions, Con- utes of Limitation, Parties to Action, Evi- 
structionof Statute and Particular Terms, dentiary Matters, and Particular 
and Remedies. 66 A.L.R.6th 351. Violations of Statute. 67 A.L.R.6th 209. 

TITLE 5 
CRIMINAL OFFENSES 

SUBTITLE 4. OFFENSES AGAINST PROPERTY 

CHAPTER. 

38. DAMAGE OR DESTRUCTION OF PROPERTY. 



23 



GENERAL PROVISIONS 

SUBTITLE 1. GENERAL PROVISIONS 



5-1-109 



CHAPTER 1 
GENERAL PROVISIONS 



5-1-102. Definitions. 



CASE NOTES 



Analysis 

Physical Injury. 

Possess. 

Serious Physical Injury. 

Physical Injury. 

Revocation of defendant's suspended 
imposition of sentence for two felony con- 
victions was appropriate because the cir- 
cuit court's finding that she committed 
third-degree domestic battering and thus 
violated the condition that she break no 
laws, was not clearly against the prepon- 
derance of the evidence. The testimony 
was sufficient to prove that, either pur- 
posefully or recklessly, she struck her 
nephew and caused him physical injury in 
the form of substantial pain under § 5-26- 
305(a) and subdivision (14) of this section. 
Westbrook v. State, 2011 Ark. App. 615, — 
S.W.3d — (2011). 

Possess. 

Evidence that there was a funnel, plas- 
tic tubing, coffee filters, camp fuel, sy- 

5-1-109. Statute of limitations. 



ringes, gloves, a metal spoon, a smoking 
device, a bag of ammonia nitrate, and a 
pill crusher in the master bedroom of 
defendant's home, along with a burn bar- 
rel in the back yard, was sufficient to 
support a conviction for possession of 
paraphernalia with intent to manufac- 
ture. Gowen v. State, 2011 Ark. App. 761, 
— S.W.3d — (2011). 

Serious Physical Injury. 

Defendant's conviction for aggravated 
assault was proper because there was 
evidence that defendant's conduct created 
a substantial risk of serious physical in- 
jury, as defined in subdivision (21) of this 
section; defendant hit the victim with the 
butt of a pistol with sufficient force to 
knock the victim down, breaking facial 
bones and causing the victim's eye to swell 
shut. Pitts v. State, 2012 Ark. App. 228, — 
S.W.3d — (2012). 



CASE NOTES 



Commencement of Prosecution. 

Subdivision (c)(1) of this section permit- 
ted prosecution of defendant for thefts of 
property that occurred outside the three- 
year statute of limitations because defen- 
dant committed fraud by using her posi- 
tion handling the payroll for her employer 
to steal tens of thousands of dollars and 



the fraud was discovered less than one 
year before the criminal proceedings were 
initiated. Leek v. State, 2012 Ark. App. 
699, — S.W.3d — , 2012 Ark. App. LEXIS 
828 (Dec. 12, 2012). 

Cited: Clark v. State, 2012 Ark. App. 
496, — S.W.3d — (2012). 



5-1-110 



CRIMINAL OFFENSES 



24 



5-1-110. Conduct constituting more than one offense — Pros- 
ecution. 

CASE NOTES 



Analysis 

Lesser Included Offenses. 
Multiple Convictions. 

Lesser Included Offenses. 

Sexual indecency with a child was not a 
lesser included offense of sexual assault in 
the first degree, as sexual indecency with 
a child required solicitation, which was 
not required for sexual assault in the first 
degree, and sexual assault in the first 
degree required that the sexual conduct 
occur but not that the defendant solicit 
the conduct. Sexual indecency with a child 
requires proof that the victim was less 
than fifteen years old, whereas sexual 
assault in the first degree only requires 
that the victim was less than eighteen 
years old. Halliday v. State, 2011 Ark. 
App. 544, — S.W.3d — (2011). 

In a case in which a jury convicted 
defendant of capital murder in the shoot- 
ing death of his ex- wife, the trial court 
properly refused to instruct the jury on 
reckless manslaughter and negligent ho- 
micide. Defendant, who fired once into a 
residence, mortally striking his ex-wife in 
the back, offered no rational basis to sup- 
port giving either instruction on the basis 
that his actions were reckless or negli- 
gent. Jones v. State, 2012 Ark. 38, — 
S.W.3d — (2012). 

In a criminal trial, the circuit court did 
not abuse its discretion in denying defen- 
dant's request to instruct the jury that 
second-degree sexual assault under § 5- 
14-125(a)(3) was a lesser offense included 
in rape of a person less than fourteen 
years of age, as defined in § 5-14- 
103(a)(3)(A), because the offense con- 
tained two elements not included in rape: 
defendant's age and marital status.. 
Therefore, second-degree sexual assault 
was not a lesser offense included in rape 
under the tests set forth in subsection (b) 
of this section. Webb v. State, 2012 Ark. 
64, — S.W.3d — (2012). 

Defense counsel was not ineffective for 
not objecting that defendants' convictions 
violated double jeopardy under subsection 
(b) of this section because possession of 



drug paraphernalia with intent to manu- 
facture methamphetamine was not a 
lesser-included offense of manufacturing 
methamphetamine, in violation of § 5-64- 
101(m). Myers v. State, 2012 Ark. 143, — 
S.W.3d — (2012). 

Appellant sentenced to 540 months' in- 
carceration for manufacturing a con- 
trolled substance, two counts of posses- 
sion of drug paraphernalia with the intent 
to manufacture methamphetamine, and 
failure to appear was not entitled to pro- 
ceed with an appeal of the decision deny- 
ing his petition for writ of habeas corpus. 
The trial court was not without jurisdic- 
tion to accept appellant's guilty plea for 
the charges of possession of drug para- 
phernalia with intent to manufacture 
methamphetamine, as it was not a lesser- 
included offense of manufacturing meth- 
amphetamine for purposes of subsection 
(b) of this section because the offenses do 
not share the same elements; a conviction 
for manufacturing methamphetamine re- 
quires the State to prove that a defendant 
is engaged in the production, preparation, 
propagation, compounding, conversion, or 
processing of methamphetamine, whereas 
possession of drug paraphernalia with in- 
tent to manufacture methamphetamine 
requires no such proof. McHaney v. Hobbs, 
2012 Ark. 361, — S.W.3d — (2012). 

Jury instruction on the lesser-included 
offense of attempted aggravated robbery 
was not warranted because there was no 
evidence of the offense of attempt under 
§ 5-3-20 1(a)(2); when appellant stormed 
out of a retail store's stockroom brandish- 
ing a gun and pointing it employees, he 
actually completed the offense of aggra- 
vated robbery. Thomas v. State, 2012 Ark. 
App. 466, — S.W.3d — (2012). 

Multiple Convictions. 

Trial court did not err in determining 
that consecutive sentencing for aggra- 
vated robbery, § 5-12-103(a)(l), first-de- 
gree terroristic threatening, § 5-13- 
301(a)(1)(A), and second-degree battery, 
§ 5-13-202(a)(2), did not violate the pro- 
hibition against double jeopardy in Ark. 
Const. Art. 2, § 8 and the Fifth Amend- 



25 



PRINCIPLES OF CRIMINAL LIABILITY 



5-2-202 



merit because neither first-degree terror- 
istic threatening nor second-degree bat- 
tery was a lesser-included offense of 
aggravated robbery since both crimes re- 
quired proof of additional facts not re- 
quired by aggravated robbery; the offense 
of first-degree terroristic threatening re- 



quires the elements of threatening to 
cause the death of the victim and the 
purpose of terrorizing the victim, and a 
conviction for second-degree battery re- 
quires proof of purposely causing physical 
injury to the victim. Walker v. State, 2012 
Ark. App. 61, — S.W.3d — (2012). 



5-1-112. Affirmative defense — Former prosecution for same 
offense. 

CASE NOTES 



Overruling Necessity. 

State did not prove an overriding neces- 
sity to end a prior trial under subdivision 
(3) of this section to prevent a dismissal on 
double jeopardy grounds as a witness ex- 



the jury what conclusion to reach in the 
prior trial, but the testimony did not tell 
the jury what conclusion to reach; the 
judge's admonition cured any error or 
prejudice. Everetts v. State, 2011 Ark. 



ceeded the trial judge's order not to tell App. 629, — S.W.3d — (2011). 

CHAPTER 2 
PRINCIPLES OF CRIMINAL LIABILITY 

Subchapter 2 — Culpability 

5-2-202. Culpable mental states — Definitions. 

CASE NOTES 



Analysis 

Instructions. 

Knowingly. 

Negligently. 

Purposely. 

Recklessly. 

Instructions. 

In a case in which a jury convicted 
defendant of capital murder in the shoot- 
ing death of his ex-wife, the trial court 
properly refused to instruct the jury on 
reckless manslaughter and negligent ho- 
micide. Defendant, who fired once into a 
residence, mortally striking his ex-wife in 
the back, offered no rational basis to sup- 
port giving either instruction on the basis 
that his actions were reckless or negli- 
gent. Jones v. State, 2012 Ark. 38, — 
S.W.3d — (2012). 

Knowingly. 

Appellant's conviction for second-degree 
murder was affirmed because the pattern 
of the gunshots, which were aimed at the 



victim's chest and upper-arm area, as well 
as the trajectory of the bullets showed 
that appellant acted deliberately in a 
manner that would naturally and prob- 
ably culminate in the victim's death. Phil- 
lips v. State, 2011 Ark. App. 575, — S.W.3d 
— (2011). 

Defendant's conviction for second-de- 
gree battery, in violation of § 5-13- 
202(a)(4)(C), was supported by the evi- 
dence because the number of bruises on 
his girlfriend's 23-month-old son and the 
unusual force necessary to cause them, as 
testified to by an emergency room pedia- 
trician, provided proof that he knowingly 
caused physical injury under subdivision 
(2)(B) of this section. Hahn v. State, 2012 
Ark. App. 297, — S.W.3d — (2012). 

Negligently. 

Because there was no negligent behav- 
ior on the part of defendant pursuant to 
subsection (4) of this section, his action 
were purposeful, and a firearm and tool- 
mark examiner for the Arkansas State 
Crime Lab testified that for the gun to be 



5-2-203 



CRIMINAL OFFENSES 



26 



fired, the trigger had to be pulled, which 
usually required five to five and a half 
pounds of pressure, the trial court did not 
err in refusing to give the jury an instruc- 
tion on negligent homicide under § 5-10- 
105(b)(1). Ratterree v. State, 2012 Ark. 
App. 701, — S.W.3d — , 2012 Ark. App. 
LEXIS 821 (Dec. 12, 2012). 

Purposely. 

During a trial for breaking or entering, 
the jury was not required to believe defen- 
dant's claim that defendant did not enter 
a vehicle with the intent to steal anything 
under subdivision (1) of this section, but 
instead to have a place to sleep; defen- 
dant's argument overlooked the fact that 
an officer found a car-stereo faceplate in 
defendant's pocket. Pruitt v. State, 2011 
Ark. App. 754, — S.W.3d — (2011). 

Substantial evidence supported a find- 
ing that defendant acted purposely, within 
the meaning of subdivision (1) of this 
section, when he discharged a gun in the 
direction of a step that was three steps 
down from where the assault victim was 
standing. Defendant's explanation of the 
gun accidentally firing did not match the 
physical evidence of bullet fragments 
found near a pock mark on the first step to 
the front porch and both the victim and 
defendant being wounded. Montalvo v. 
State, 2012 Ark. App. 119, — S.W.3d — 
(2012). 



Evidence was sufficient to convict defen- 
dant of first-degree murder under § 5-10- 
102(a)(2) because the three gunshot 
wounds to the victim alone, at least two of 
which were fired 35-40 seconds apart, ran 
counter to defendant's accidental shooting 
theory; and the evidence supported an 
inference of purposeful intent under sub- 
division (1) of this section. Smith v. State, 
2012 Ark. App. 359, — S.W.3d — (2012). 

Evidence was sufficient to sustain de- 
fendant's attempted first-degree murder 
conviction because defendant knocked on 
a door and fired a gun at the victim when 
he opened the door. The jury could reason- 
ably have inferred that defendant pur- 
posely engaged in conduct that consti- 
tuted a substantial step in a course of 
conduct known to cause death to another 
person, regardless of that person's iden- 
tity. Wells v. State, 2012 Ark. App. 596, — 
S.W.3d— , 2012 Ark. App. LEXIS 718 (Oct. 
24, 2012). 

Recklessly. 

During defendant's trial for permitting 
the abuse of her minor child, the court did 
not err in allowing defendant's mother to 
testify regarding her reaction to the 
child's injuries; the testimony was rel- 
evant as to whether defendant recklessly 
failed to take action to prevent the abuse 
under subdivision (3) of this section. Sul- 
livan v. State, 2012 Ark. 74, — S.W.3d — 
(2012). 



5-2-203. Culpable mental states — Interpretation of statutes. 

CASE NOTES 



Legislative Intent. 

In a first-degree felony murder case, the 
Supreme Court rejected defendant's con- 
tention that it erred in deciding Perry v. 
State and Hill v. State by failing to apply 
subsection (b) of this section. Contrary to 
defendant's suggestion that its decisions 



ignored the legislature's mandate stated 
in subsection (b), the Supreme Court's 
felony-murder jurisprudence was in con- 
cert with the legislature's intent. Holian v. 
State, 2013 Ark. 7, — S.W.3d — , 2013 Ark. 
LEXIS 11 (Jan. 17, 2013). 



5-2-205. Causation. 



CASE NOTES 



Death. 

Defendant's conviction for capital mur- 
der under subdivision (a)(4) of this section 
was proper because the circuit court did 
not err in denying his motion for a di- 



rected verdict. Defendant's stabbing of the 
victim brought about the officers' use of 
deadly force that killed the victim; had 
defendant not been stabbing her, the offi- 
cers would not have attempted to end 



27 



PRINCIPLES OF CRIMINAL LIABILITY 



5-2-305 



defendant's attack on her by using deadly 
force. Anderson v. State, 2011 Ark. 461, — 
S.W.3d — (2011). 



5-2-209. Entrapment. 



CASE NOTES 



Analysis 

Admission of Crime. 
Evidence. 

Admission of Crime. 

Defendant, who was convicted for inter- 
net stalking, should have been permitted 
to plead entrapment under this section as 
an affirmative defense while at the same 
time denying one or two elements of the 
crime, and therefore defendant's convic- 
tion was reversed, because the doctrine 
requiring a defendant to admit to all the 
elements of a crime in order to plead 
entrapment could result in punishment 
upon a defendant who was merely en- 
trapped; the doctrine could possibly pun- 



ish a defendant for a serious crime for 
merely seeking to require the state to 
prove its case aside from offering an affir- 
mative defense. Smoak v. State, 2011 Ark. 
529, — S.W.3d — (2011). 

Evidence. 

Denial of appellant's, an inmate's, peti- 
tion for writ of certiorari was improper 
because the evidence at issue presented a 
jury question concerning whether the in- 
formant had induced the commission of 
the offense, and the jury was given an 
instruction on the affirmative defense of 
entrapment. Thus, the inmate failed to 
prove that he received the ineffective as- 
sistance of counsel. Lowe v. State, 2012 
Ark. 185, — S.W.3d — (2012). 



Subchapter 3 — Mental Disease or Defect 



5-2-305. Mental health examination of defendant. 



CASE NOTES 



Analysis 

Compliance with Section. 
Examination Report. 

Compliance with Section. 

Defendant's conviction for breaking or 
entering was proper because the trial 
court did not err in failing to suspend the 
proceedings sua sponte and order a second 
competency hearing based on his actions 
shortly before and during trial. In part, 
although defendant appeared to have re- 
quired restraint at trial because he would 
stand at inappropriate times, and he as- 
serted that he did not understand the 
proceedings, those behaviors were en- 
tirely consistent with those observed dur- 
ing the videotaped interview following his 



arrest, after which defendant underwent 
a psychological examination. Vilayvanh v. 
State, 2012 Ark. App. 561, — S.W.3d — 
(2012). 

Examination Report. 

Denial of the inmate's petition for post- 
conviction relief under Ark. R. Crim. P. 
37.1 was improper as to the competency 
issue because the supreme court was un- 
able to determine whether there were any 
results of the mental evaluation of which 
the parties or the court might have been 
made aware, whether those results were 
contested, or whether there was any other 
resolution settling the issue of the in- 
mate's competency to proceed and enter 
his plea. Sandoval-Vega v. State, 2011 
Ark. 393, — S.W.3d — (2011). 



5-2-312 



CRIMINAL OFFENSES 



28 



5-2-312. Lack of capacity — Affirmative defense. 

CASE NOTES 



Mental Disease or Defect. 

Appellant's convictions for second-de- 
gree murder and first-degree battery were 
affirmed because the jury was free to give 
credit to the forensic psychologist's testi- 
mony that appellant had no mental ill- 



ness, or that he was able in any event to 
appreciate the criminality of his conduct 
and to conform his conduct in accordance 
with the law. Lands v. State, 2012 Ark. 
App. 616, — S.W.3d — , 2012 Ark. App. 
LEXIS 720 (Oct. 31, 2012). 



Subchapter 4 — Parties to Offenses 
5-2-402. Liability for conduct of another generally. 

CASE NOTES 



Evidence. 

Defendant's concession that defendant 
participated in an aggravated robbery 
presented adequate grounds under subdi- 
vision (2) of this section to support defen- 
dant's conviction for capital-felony mur- 
der; it was patently clear that the victim 
was killed in furtherance of an aggravated 
robbery that was planned and executed by 
defendant. Whiteside v. State, 2011 Ark. 
371, — S.W.3d — (2011). 

Substantial evidence supported a juve- 



nile's second-degree battery disposition 
based on accomplice liability under sub- 
section (2) of this section because a code- 
fendant testified that the juvenile solic- 
ited and encouraged the plan to beat her 
boyfriend, who she suspected of cheating; 
the juvenile could be found guilty of the 
conduct of her accomplices who threw the 
punches. L.C. v. State, 2012 Ark. App. 666, 
— S.W.3d — , 2012 Ark. App. LEXIS 782 
(Nov. 28, 2012). 



5-2-403. Accomplices. 



CASE NOTES 



Evidence. 

Defendant's concession that defendant 
participated in an aggravated robbery 
presented adequate grounds under sub- 
section (a) of this section to support defen- 
dant's conviction for capital-felony mur- 
der; it was patently clear that the victim 
was killed in furtherance of an aggravated 
robbery that was planned and executed by 
defendant. Whiteside v. State, 2011 Ark. 
371, — S.W.3d — (2011). 

Judgment finding that appellant was an 
accomplice to misdemeanor theft of prop- 
erty was affirmed because appellant and 
the thief stood outside the off-limits locker 
room together, looked down the hall, went 
into the locker room together, looked out 
of and reentered the locker room more 
than once, and then left the locker room 
together. T.D. v. State, 2012 Ark. App. 140, 
— S.W.3d — (2012). 

Substantial evidence supported a juve- 



nile's second-degree battery disposition 
based on accomplice liability under subdi- 
visions (a)(l)-(2) and (b)(l)-(2) of this sec- 
tion because a codefendant testified that 
the juvenile solicited and encouraged the 
plan to beat her boyfriend, who she sus- 
pected of cheating; the juvenile could be 
found guilty of the conduct of her accom- 
plices who threw the punches. L.C. v. 
State, 2012 Ark. App. 666, — S.W.3d — , 
2012 Ark. App. LEXIS 782 (Nov. 28, 2012). 
Evidence was sufficient to support con- 
victions of aggravated robbery, theft of 
property, aggravated assault, and an en- 
hancement due to the use of a firearm 
because the victim identified appellant as 
the principal involved in several crimes 
and the accomplice under subsection (a) of 
this sectionas to the theft. The jury did not 
have to believe testimony from the other 
participant about appellant's involve- 
ment, and there were other factors linking 



29 PRINCIPLES OF CRIMINAL LIABILITY 5-2-607 

appellant to the crimes; both appellant Bass v. State, 2013 Ark. App. 55, — S.W.3d 

and the other participant fled the scene, — , 2013 Ark. App. LEXIS 50 (Jan. 30, 

they were both found hiding in the same 2013). 

apartment, and they were both in proxim- Cited: Strain v. State, 2012 Ark. 42, — 

ity to a loaded gun and the victim's pants. S.W.3d — (2012). 

5-2-406. Multiple convictions — Different degrees. 

CASE NOTES 

Cited: Strain v. State, 2012 Ark. 42, — 
S.W.3d — (2012). 

Subchapter 6 — Justification 

5-2-604. Choice of evils. 

CASE NOTES 

Actor's Conduct. sion (a)(1) of this section and sustain his 

Defendant's act of going outside with conviction for being a felon in possession 

the gun and continuing interaction with of a firearm. Green v. State, 2011 Ark. 

the victim was sufficient evidence to reject App. 700, — S.W.3d — (2011). 
the choice of evils defense under subdivi- 

5-2-605. Use of physical force generally. 

CASE NOTES 

Discipline. verdict on outrage, the jury found that the 

Any error in refusing a religious lead- leader willfully engaged in extreme and 

er's jury instruction on corporal punish- outrageous conduct, causing the former 

ment was harmless because such an in- members emotional distress and bodily 

struction would have applied only to harm. Ondrisek v. Hoffman, — F.3d — , 

battery and would not have affected the 2012 U.S. App. LEXIS 18196 (8th Cir. 

verdict on outrage or conspiracy. By the Aug. 28, 2012). 

5-2-607. Use of deadly physical force in defense of a person. 

CASE NOTES 

Evidence. around the neighborhood, found the vic- 

Evidence was sufficient to rebut a claim tim, and fired more shots that struck the 

of justification under this section and to victim. Green v. State, 2011 Ark. App. 700, 

convict defendant of attempted-capital — S.W.3d — (2011). 

murder and first-degree battery as defen- Cited: Stocker v. State, 2012 Ark. App. 

dant shot at the victim while he was 624, — S.W.3d — , 2012 Ark. App. LEXIS 

running away, and defendant then drove 753 (Nov. 7, 2012). 



5-2-620 



CRIMINAL OFFENSES 



30 



5-2-620. Use of force to defend persons and property within 

home. 



CASE NOTES 



Burden of Proof. 

State's obligation to prove the elements 
of aggravated assault beyond a reasonable 
doubt subsumed the lesser burden of proof 



to overcome the presumption of legality in 
the defense of one's home. Montalvo v. 
State, 2012 Ark. App. 119, — S.W.3d — 
(2012). 



CHAPTER 3 
INCHOATE OFFENSES 

Subchapter 2 — Criminal Attempt 

5-3-201. Conduct constituting attempt. 

CASE NOTES 



Analysis 

Attempted Aggravated Robbery. 
Attempted Murder. 
Evidence. 

Attempted Aggravated Robbery. 

Jury instruction on the lesser-included 
offense of attempted aggravated robbery 
was not warranted because there was no 
evidence of the offense of attempt under 
subdivision (a)(2) of this section; when 
appellant stormed out of a retail store's 
stockroom brandishing a gun and pointing 
it employees, he actually completed the 
offense of aggravated robbery. Thomas v. 
State, 2012 Ark. App. 466, — S.W.3d — 
(2012). 

Attempted Murder. 

Defendant's convictions for first-degree 
murder and aggravated robbery, in viola- 
tion of this § 5- 10- 102(a), this section, and 
§ 5-12-103(a), were supported by suffi- 
cient evidence, as the evidence showed 
that defendant was armed with a deadly 
weapon for the purpose of committing the 
theft of a cab driver, that defendant 
threatened the driver, and that the driver 
was shot in the struggle over the gun. 
Garr v. State, 2011 Ark. App. 509, — 
S.W.3d — (2011). 

Evidence was sufficient to sustain de- 



fendant's attempted first-degree murder 
conviction because defendant knocked on 
a door and fired a gun at the victim when 
he opened the door. The jury could reason- 
ably have inferred that defendant pur- 
posely engaged in conduct that consti- 
tuted a substantial step in a course of 
conduct known to cause death to another 
person, regardless of that person's iden- 
tity. Wells v. State, 2012 Ark. App. 596, — 
S.W.3d — , 2012 Ark. App. LEXIS 718 (Oct. 
24, 2012). 

Evidence. 

Denial of appellant's, an inmate's, peti- 
tion for postconviction relief pursuant to 
Ark. R. Crim. P. 37.1 was appropriate 
because the evidence demonstrated that 
he was not prejudiced by his trial coun- 
sel's failure to properly renew his motion 
for directed verdict at the close of all the 
evidence. While the inmate was unable to 
challenge the sufficiency of the evidence in 
his direct appeal, there was substantial 
evidence to support the verdicts, including 
the inmate himself admitting to hitting 
his wife's car from behind and then get- 
ting out of his truck and shooting her; the 
surviving victim testified that after falling 
in an attempt to run away from the scene, 
she looked up and saw the inmate over her 
smiling and holding a shotgun. Davis v. 
State, 2011 Ark. 493, — S.W.3d — (2011). 



31 



INCHOATE OFFENSES 



5-3-403 



5-3-203. Classification. 



CASE NOTES 



Reasonable Cause to Arrest. 

Denial of motion to suppress was not 
clearly against the preponderance of the 
evidence, because the inventory search of 
defendant's vehicle was proper upon de- 
fendant's lawful arrest, and it was stan- 
dard police policy to inventory the con- 
tents of any vehicle before having it 



towed; at the time of defendant's arrest 
theft of property was a Class C felony if 
the value of the property was less than 
$2,500 but more than $500, and criminal 
attempt was a Class D felony if the offense 
attempted was a Class C felony. Boykin v. 
State, 2012 Ark. App. 274, — S.W.3d — 
(2012). 



Subchapter 4 — Criminal Conspiracy 

5-3-401. Conduct constituting conspiracy. 

CASE NOTES 



Analysis 

Evidence. 
Sentence. 

Evidence. 

Defendant committed an overt act in 
furtherance of a conspiracy to commit 
kidnapping, aggravated robbery, theft of 
property, and aggravated residential bur- 
glary because he took another person to 
his residence and showed the person the 
inside of the premises, discussed how to 
break in the residence and how to subdue 



his wife, and identified the property to be 
taken from the residence. Winkler v. 
State, 2012 Ark. App. 704, — S.W.3d — , 
2012 Ark. App. LEXIS 825 (Dec. 12, 2012). 

Sentence. 

There was no error in the trial court's 
sentencing of defendant because the court 
complied with the conspiracy statute and 
had the authority to impose a sentence of 
nine years' imprisonment with respect to 
the conspiracy conviction. Winkler v. 
State, 2012 Ark. App. 704, — S.W3d — , 
2012 Ark. App. LEXIS 825 (Dec. 12, 2012). 



5-3-403. Multiple criminal objectives. 

CASE NOTES 



Multiple Substantive Offenses. 

Trial court did not err because judicial 
precedent allowed the prosecution of one 
count of conspiracy to commit multiple 
object offenses; moreover, defendant was 
not prejudiced by the inclusion of multiple 



object offenses in the single charge be- 
cause he faced thirty years in prison but 
the jury sentenced him to nine years' 
imprisonment. Winkler v. State, 2012 Ark. 
App. 704, — S.W3d — , 2012 Ark. App. 
LEXIS 825 (Dec. 12, 2012). 



5-4-101 



CRIMINAL OFFENSES 

CHAPTER 4 
DISPOSITION OF OFFENDERS 

Subchapter 1 — General Provisions 



32 



5-4-101. Definitions. 



CASE NOTES 



Analysis 

Restitution. 

Suspension or Probation. 

Restitution. 

Court retained jurisdiction to revoke 
the suspended sentence for failure to pay 
restitution, because the petitioner was 
charged with fleeing to avoid arrest for 
possession of marijuana and causing prop- 
erty damage while fleeing, and was or- 
dered to pay restitution for the damage he 
caused during the course of the criminal 
episode. Arter v. State, 2012 Ark. App. 
327, — S.W.3d — (2012). 



Suspension or Probation. 

Trial court did not err in sentencing 
defendant after revoking his probation 
because defendant pleaded guilty to sec- 
ond-degree domestic battery, § 5-26-304, 
and third-degree domestic battery, § 5- 
26-305, and his sentences of ten and six 
years, respectively, were sentences that 
could have been originally imposed for the 
offenses of which he was found guilty. 
Jones v. State, 2012 Ark. App. 69, — 
S.W.3d — (2012). 



5-4-102. Presentence investigation. 

CASE NOTES 



Presentence Report. 

Court did not abuse its discretion by 
admitting the presentence report into evi- 
dence, because the probation officer's re- 
port was not admitted as expert testimony 
and the court assured defendant it would 



give the report the proper weight, and 
defendant was aware of the contents of 
the report and elicited contradictory testi- 
mony from the therapist. Howerton v. 
State, 2012 Ark. App. 331, — S.W.3d — 
(2012). 



5-4-103. Sentencing — Role of jury and court. 

CASE NOTES 



Analysis 

Sentence Fixed by Jury. 
Sentencing by Court. 

Sentence Fixed by Jury. 

Petitioner's death sentence could not 
stand because the manner in which the 
jury completed its form allowed only the 
conclusion that it eliminated from its con- 
sideration all evidence presented of miti- 



gating circumstances and sentenced peti- 
tioner to death solely based on an 
aggravating circumstance, which was re- 
versible error. Williams v. State, 2011 Ark. 
534, — S.W.3d — (2011). 

Sentencing by Court. 

Imposition of a mandatory life-without 
parole sentence for a juvenile capital- 
felony-murder offender was not illegal be- 
cause it did not violate the offender's right 



33 



DISPOSITION OF OFFENDERS 



5-4-104 



to a jury trial under subsection (a) of this 
section. Whiteside v. State, 2011 Ark. 371, 
— S.W.3d — (2011). 

5-4-104. Authorized sentences generally. 

CASE NOTES 



Analysis 

Construction. 

Fines. 

Illegal Sentence. 

Unauthorized Sentence. 

Construction. 

Act 192 of 1993 amended subdivision 
(e)(1) of this section and § 5-4-301(a)(l) to 
permit suspension and probation as alter- 
native sentences for certain drug offenses. 
Crouse v. State, 2012 Ark. 442, — S.W.3d 
— 2012 Ark. LEXIS 467 (Nov. 29, 2012). 

Fines. 

Court erred in failing to give defen- 
dant's proffered jury instruction allowing 
the jury to consider imposing a fine with- 
out imprisonment, notwithstanding his 
status as a habitual offender, because the 
model jury instruction which allowed for 
the jury to consider only the possibility of 
imprisonment when the defendant was a 
habitual offender did not accurately re- 
flect the law, as it did not give the jury the 
option of considering only the payment of 
a fine, as authorized by subdivision (d)(3) 
of this section. Andrews v. State, 2012 
Ark. App. 597, — S.W.3d — , 2012 Ark. 
App. LEXIS 702 (Oct. 24, 2012). 

Illegal Sentence. 

Upon defendant's conviction for rape 
and second-degree battery, the circuit 
court erred in ordering him to complete a 
sex-offender treatment program because 
he was sentenced under §§ 5-4-401, 5-4- 
501 and these statutes did not authorize 



the court to order a sex-offender treat- 
ment program. Pursuant to § 5-4-303, a 
circuit court may clearly place conditions 
on a defendant when the court suspends 
the imposition of sentence or places the 
defendant on probation, but that there is 
no similar provision in subsection (d) of 
this section that would allow a court to 
place specific conditions on a sentence of 
incarceration. White v. State, 2012 Ark. 
221, — S.W.3d — (2012). 

Upon revoking defendant's probation 
for the fraudulent use of a credit or debit 
card, the trial court sentenced defendant 
to 365 days' incarceration and required 
her to attend a drug program. Because 
such a condition to incarceration was not 
authorized by subsection (d) of this sec- 
tion, the sentence was illegal. Runion v. 
State, 2012 Ark. App. 365, — S.W.3d — 
(2012). 

Unauthorized Sentence. 

In a case involving rape and other of- 
fenses, a remand was necessary for a trial 
court to resolve an incongruity within the 
judgment and commitment order itself, 
which referred to conditions of a sus- 
pended sentence, despite a specification 
that there were no suspended imposition 
of sentence. If completion of a Reduction of 
Sexual Victimization Program was or- 
dered as a condition of incarceration, the 
circuit court had the opportunity to cor- 
rect it because only the Arkansas Depart- 
ment of Correction that could have deter- 
mined any conditions of incarceration. 
Dillard v. State, 2012 Ark. App. 503, — 
S.W.3d — (2012). 



5-4-205 CRIMINAL OFFENSES 

Subchapter 2 — Fines, Costs, and Restitution 



34 



5-4-205. Restitution. 



Analysis 



CASE NOTES 



Failure to Comply. 

Jurisdiction. 

Settlement. 

Failure to Comply. 

Trial court did not err in continuing 
defendant's probation for failure to pay 
restitution as ordered, despite defendant's 
argument that she was looking for work, 
that she was seeking to have her theft 
conviction overturned, and that she was 
trying to get disability, all of which claims 
were seriously undermined by the state. 
Newsom v. State, 2011 Ark. App. 760, — 
S.W.3d — (2011). 

Appellant did not dispute that he did 
not pay known obligations and he ac- 
knowledged his income allowed him to 
pay, and it was the trial court's decision to 
determine the weight and credibility of 
the evidence; the trial court's findings in 
revoking appellant's suspended sentence 
for purposes of subdivision (f)(3) of this 
section were not clearly against the evi- 
dence. Reyes v. State, 2012 Ark. App. 358, 
— S.W.3d — (2012). 



Jurisdiction. 

Court retained jurisdiction to revoke 
the suspended sentence for failure to pay 
restitution, because the petitioner was 
charged with fleeing to avoid arrest for 
possession of marijuana and causing prop- 
erty damage while fleeing, and was or- 
dered to pay restitution for the damage he 
caused during the course of the criminal 
episode. Arter v. State, 2012 Ark. App. 
327, — S.W.3d — (2012). 

Settlement. 

Where defendant was convicted of bat- 
tery and ordered to pay $40,304.35 in 
restitution, the release signed by the vic- 
tim in the civil suit when she received 
$25,000 from the insurance company did 
not prevent the court from ordering defen- 
dant to pay the remaining restitution ob- 
ligation of $10,708.94; because the plain 
language of the release revealed abso- 
lutely no mention of the restitution order 
under subdivision (g)(3) of this section 
was inapplicable. Moore v. State, 2012 
Ark. 350, — S.W.3d — (2012). 



Subchapter 3 — Suspension or Probation 

5-4-301. Crimes for which suspension or probation prohibited 
— Criteria for suspension or probation in other 
cases. 

CASE NOTES 



Drug Offenses. 

Act 192 of 1993 amended §§ 5-4- 
104(e)(1) and subdivision (a)(1) of this 
section to permit suspension and proba- 



tion as alternative sentences for certain 
drug offenses. Crouse v. State, 2012 Ark. 
442, — S.W.3d — , 2012 Ark. LEXIS 467 
(Nov. 29, 2012). 



5-4-303. Conditions of suspension or probation. 



A.C.R.C. Notes. Acts 2012, No. 255, 
§ 9, provides: "FEE GENERATION AND 
SUPPORT — COURTS. Unless specified 
otherwise in Arkansas Code §5-4-303(g) 
and Arkansas Code 16-87-213 the monies 



collected by the courts under the authority 
of §5-4-303(g) and 16-87-213 shall be de- 
posited into the State Treasury to the 
credit of the State Central Services Fund. 
"In the event that the law requires that 



35 



DISPOSITION OF OFFENDERS 



5-4-303 



the fees levied under §5-4-303(g) be depos- 
ited into the State Administration of Jus- 
tice Fund, the State Treasurer shall trans- 
fer the amount of the fees collected each 
month under the authority of Arkansas 
Code §5-4-303(g) from the State Adminis- 



tration of Justice Fund to the State Cen- 
tral Services Fund. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CASE NOTES 



Analysis 

Restitution or Reparation. 
Unauthorized Sentence. 

Restitution or Reparation. 

Trial court did not err in continuing 
defendant's probation for failure to pay 
restitution as ordered, despite defendant's 
argument that she was looking for work, 
that she was seeking to have her theft 
conviction overturned, and that she was 
trying to get disability, all of which claims 
were seriously undermined by the state. 
Newsom v. State, 2011 Ark. App. 760, — 
S.W.3d — (2011). 

Court retained jurisdiction to revoke 
the suspended sentence for failure to pay 
restitution, because the petitioner was 
charged with fleeing to avoid arrest for 
possession of marijuana and causing prop- 
erty damage while fleeing, and was or- 
dered to pay restitution for the damage he 
caused during the course of the criminal 
episode. Arter v. State, 2012 Ark. App. 
327, — S.W.3d — (2012). 

Trial court was without jurisdiction to 
revoke defendant's suspended sentence 
for fourth offense DWI, because the period 
of the suspended sentence had expired 
two years prior to the state filing a peti- 
tion for revocation. Defendant was not 
ordered to pay restitution, so jurisdiction 
could not be continued under subdivision 
(h)(2) of this section. Wallace v. State, 
2012 Ark. App. 571, — S.W.3d — (2012). 

Unauthorized Sentence. 

Upon defendant's conviction for rape 
and second-degree battery, the circuit 
court erred in ordering him to complete a 



sex-offender treatment program because 
he was sentenced under §§ 5-4-401, 5-4- 
501 and these statutes did not authorize 
the court to order a sex-offender treat- 
ment program. Pursuant to this section, a 
circuit court may clearly place conditions 
on a defendant when the court suspends 
the imposition of sentence or places the 
defendant on probation, but that there is 
no similar provision in § 5-4- 104(d) that 
would allow a court to place specific con- 
ditions on a sentence of incarceration. 
White v. State, 2012 Ark. 221, — S.W.3d — 
(2012). 

Upon revoking defendant's probation 
for the fraudulent use of a credit or debit 
card, the trial court sentenced defendant 
to 365 days' incarceration and required 
her to attend a drug program. Because 
defendant was not sentenced to probation, 
the condition to incarceration was not 
authorized by subdivision (d)(4) of this 
section; therefore, the sentence was ille- 
gal. Runion v. State, 2012 Ark. App. 365, 
— S.W3d — (2012). 

In a case involving rape and other of- 
fenses, a remand was necessary for a trial 
court to resolve an incongruity within the 
judgment and commitment order itself, 
which referred to conditions of a sus- 
pended sentence, despite a specification 
that there were no suspended imposition 
of sentence. If completion of a Reduction of 
Sexual Victimization Program was or- 
dered as a condition of incarceration, the 
circuit court had the opportunity to cor- 
rect it because only the Arkansas Depart- 
ment of Correction that could have deter- 
mined any conditions of incarceration. 
Dillard v. State, 2012 Ark. App. 503, — 
S.W.3d — (2012). 



5-4-304 



CRIMINAL OFFENSES 



36 



5.4.304. Confinement as condition of suspension or probation. 

CASE NOTES 



Illegal Sentence. 

Upon revoking defendant's probation 
for the fraudulent use of a credit or debit 
card, the trial court sentenced defendant 
to 365 days' incarceration in accordance 
with subdivision (d)(1)(B) of this section 



and required her to attend a drug pro- 
gram. Because such a condition to incar- 
ceration was not authorized by § 5-4- 
104(d), the sentence was illegal. Runion v. 
State, 2012 Ark. App. 365, — S.W.3d — 
(2012). 



5-4-309. [Repealed.] 



CASE NOTES 



Analysis 

Cause for Revocation. 
Preponderance of the Evidence 
Restitution or Reparation. 

Cause for Revocation. 

Because defendant's conviction for pos- 
session of cocaine with intent to deliver 
violated a condition of defendant's proba- 
tion, a trial court did not err under sub- 
section (d) of this section in revoking de- 
fendant's probation. Dishman v. State, 
2011 Ark. App. 437, — S.W.3d — (2011). 

Because a probationer conceded that 
the probationer did not contact the proba- 
tion office in Arkansas to inquire about 
the probationer's obligations while the 
probationer was on parole in Louisiana 
and that the probationer had made no 
payments toward the probationer's fines, 
costs, and restitution since the proba- 
tioner was placed on probation, pursuant 
to this section, probation was properly 
revoked. Bass v. State, 2011 Ark. App. 455, 
— S.W.3d — (2011). 

Revocation of appellant's probation was 
affirmed because appellant's probation of- 
ficer testified that appellant had stopped 
reporting and that he had tested positive 
for cocaine use. McPherson v. State, 2012 
Ark. App. 50, — S.W.3d — (2012). 

Trial court did not err under subsection 
(d) of this section in revoking defendant's 
probation for failure to register as a sex 
offender because defendant had not made 
any payments towards defendant's court 
costs and fees or indigent-defender fee; 
defendant had the ability to pay the fines 
and costs, as defendant had a job and had 
recently bought a vehicle, yet he had made 



no payments at all. Williams v. State, 
2012 Ark. App. 298, — S.W.3d — (2012). 

Trial court did not err under subsection 
(d) of this section in revoking defendant's 
probation for delivery of Xanax because 
the evidence showed that defendant vio- 
lated the conditions of probation by failing 
to appear for a drug test and testing 
positive twice for methamphetamine; de- 
fendant was also discharged from a treat- 
ment center and a drug-court program. 
Johnson v. State, 2012 Ark. App. 300, — 
S.W.3d — (2012). 

Appellant's probation was properly re- 
voked under subsection (d) of this section 
because any error in admitting a chal- 
lenged statement was rendered harmless 
by the testimony of the declarant, and 
even if appellant had an excuse for the 
first time he failed to report to his proba- 
tion officer, his subsequent failures to re- 
port were inexcusable violations of the 
terms and conditions of his probation. 
Thus, the appeal lacked merit, and coun- 
sel's motion to withdraw was granted un- 
der Ark. Sup. Ct. & Ct. App. R. 4-3(k)(l). 
James v. State, 2012 Ark. App. 429, — 
S.W.3d — (2012). 

Court's revocation of probation was not 
clearly against the preponderance of the 
evidence, because the probation officer 
testified that the petitioner had missed 
ten reports, and the petitioner admitted 
as much during his testimony. Hampton v. 
State, 2012 Ark. App. 450, — S.W.3d — 
(2012). 

Trial court did not err in revoking de- 
fendant's suspended sentences under sub- 
section (d) of this section in cases where 
he pled guilty to forgery and theft by 
receiving, because the state proved by a 



37 



DISPOSITION OF OFFENDERS 



5-4-401 



preponderance of the evidence that he 
committed a new offense of theft by receiv- 
ing. The complainant testified defendant 
took his car for a test drive and did not 
return it; the officer dispatched to the 
vehicle-theft report testified defendant 
handed him the key to the car; and defen- 
dant's testimony that he took the car to a 
mechanic to have the transmission re- 
paired made no sense. Wallace v. State, 

2012 Ark. App. 571, — S.W.3d — (2012). 
Evidence was sufficient to sustain the 

revocation of defendant's suspended sen- 
tence because the victim saw where defen- 
dant had broken into his shop, noticed 
that tools and equipment had been gath- 
ered, discovered defendant hiding inside 
the shop, and the victim identified defen- 
dant in a photographic lineup. Upshaw v. 
State, 2013 Ark. App. 41, — S.W.3d — , 

2013 Ark. App. LEXIS 64 (Jan. 30, 2013). 

Preponderance of the Evidence 

Revocation of probation was proper, be- 
cause the State need only prove that de- 
fendant committed one violation of the 
conditions, and the finding that defendant 
inexcusably failed to make payments as 
ordered was not clearly against the pre- 
ponderance of the evidence; the probation 
officer testified that defendant was delin- 
quent on his probation fees, and defen- 



dant did not offer any testimony or other 
evidence. Graydon v. State, 2012 Ark. App. 
587, — S.W.3d — , 2012 Ark. App. LEXIS 
716 (Oct. 24, 2012). 

Restitution or Reparation. 

Trial court did not err in continuing 
defendant's probation for failure to pay 
restitution as ordered, despite defendant's 
argument that she was looking for work, 
that she was seeking to have her theft 
conviction overturned, and that she was 
trying to get disability, all of which claims 
were seriously undermined by the state. 
Newsom v. State, 2011 Ark. App. 760, — 
S.W.3d — (2011). 

In a criminal contempt case under § 16- 
10- 108(a)(3), substantial evidence sup- 
ported the trial court's determination that 
defendant willfully violated the court's 
orders requiring her to make restitution 
payments because defendant testified 
that she received a monthly disability 
check in the amount of $633 but did not 
use the money to make restitution pay- 
ments. Subsection (d) of this section did 
not apply, because the trial court did not 
revoke defendant's suspended sentence. 
Summers v. State, 2012 Ark. App. 247, — 
S.W.3d — (2012). 

Cited: Joiner v. State, 2012 Ark. App. 
380, — S.W.3d — (2012). 



Subchapter 4 — Imprisonment 



5-4-401. Sentence. 



CASE NOTES 



Analysis 

Postconviction Proceedings. 

Propriety of Sentence. 

Stacking. 

Suspension or Probation. 

Unauthorized Sentence. 

Writ of Habeas Corpus Denied. 

Postconviction Proceedings. 

Trial court properly denied defendant's 
motion for postconviction relief because 
the evidence showed that defendant's 
guilty pleas were made on the advice of 
competent counsel; had defendant not 
pled guilty, defendant potentially faced up 
to life in prison for each rape offense and 
up to 10 years in prison for a failure-to- 



appear offense, pursuant to subdivisions 
(a)(1) and (4) of this section. Henson v. 
State, 2011 Ark. 375, — S.W.3d — (2011). 

Propriety of Sentence. 

In a case where probation was revoked, 
a 20-year sentence for Class B felony 
kidnapping was not improper since it was 
authorized under subdivision (a)(3) of this 
section; the appellate court was unable to 
reduce a sentence within the range of 
punishment contemplated by the Arkan- 
sas Legislature. Moreover, since appellant 
failed to object to the sentence imposed, he 
was unable to argue on appeal that the 
trial court erred by failing to consider 
alternatives to the 20-year sentence. Pfe- 
ifer v. State, 2012 Ark. App. 556, — S.W.3d 
— (2012). 



5-4-402 



CRIMINAL OFFENSES 



38 



Inmate's appeal of the denial of the 
inmate's petition to correct an illegal sen- 
tence, pursuant to § 16-90-111, was dis- 
missed because (1) Ark. R. Crim. P. 37.2(b) 
said all postconviction relief grounds cog- 
nizable under Ark. R. Crim. P. 37.1 had to 
be raised in a Rule 37.1 petition filed 
within 90 days of the date of judgment 
when a defendant pled guilty, even though 
§ 16-90-111 let a trial court correct an 
illegal sentence at any time, as the statute 
was superseded to the extent the statute 
conflicted with the Rule's time limits, (2) 
the petition was filed over six years after 
judgment was entered, (3) the time limits 
in Ark. R. Crim. P. 37.2 were jurisdic- 
tional, denying a trial court jurisdiction if 
the time limits were not met, and, on 
appeal, a reviewing court, and (4) the 
inmate's sentence was within the pre- 
scribed statutory ranges in § 5-4- 
501(b)(2)(A) and subdivision (b)(1) of this 
section. Redus v. State, 2013 Ark. 9, — 
S.W.3d — , 2013 Ark. LEXIS 15 (Jan. 17, 
2013). 

Stacking. 

State v. Lawson, 295 Ark. 37, 746 
S.W.2d 544, 1988 Ark. LEXIS 84 (1988), 
prohibits "stacking" of specific subse- 
quent-offense penalty enhancements like 
the one in the driving while impaired 
statute, which operates to convert a mis- 
demeanor to a felony because of multiple 
recurrences of the same underlying of- 
fense within a specified period of time; the 
Court of Appeals of Arkansas, Division 
One, declines to expand Lawson past that 
boundary. Therefore, there was no imper- 
missible stacking of a specific firearm en- 
hancement statute for a felon in posses- 
sion of a firearm under § 5-73- 103(c)(1) 
with the general habitual-offender en- 
hancement statute under subdivision 
(b)(2)(C) of this section; § 5-73-103(c)(l) 
did not contain an enhancement for recidi- 
vism, there was no greater sentence than 
if either statute was applied singly, and 



the designation of the possession offense 
as a Class B felony was not an enhance- 
ment. Moore v. State, 2012 Ark. App. 662, 
— S.W.3d — , 2012 Ark. App. LEXIS 764 
(Nov. 14, 2012). 

Suspension or Probation. 

Trial court did not err in sentencing 
defendant after revoking his probation 
because defendant pleaded guilty to sec- 
ond-degree domestic battery, § 5-26-304, 
and third-degree domestic battery, § 5- 
26-305, and his sentences of ten and six 
years, respectively, were sentences that 
could have been originally imposed for the 
offenses of which he was found guilty. 
Jones v. State, 2012 Ark. App. 69, — 
S.W.3d — (2012). 

Unauthorized Sentence. 

Upon defendant's conviction for rape 
and second-degree battery, the circuit 
court erred in ordering him to complete a 
sex-offender treatment program because 
he was sentenced under this section and 
§ 5-4-501 — these statutes did not autho- 
rize the court to order a sex-offender treat- 
ment program. White v. State, 2012 Ark. 
221, — S.W.3d — (2012). 

Court entered an illegal sentence by 
sentencing the petitioner to seventy-two- 
months' imprisonment on a misdemeanor, 
because if property damage occurred as a 
direct result of fleeing on foot, the offense 
was a Class A misdemeanor, and a sen- 
tence for a Class A misdemeanor should 
not exceed one year. Arter v. State, 2012 
Ark. App. 327, — S.W.3d — (2012). 

Writ of Habeas Corpus Denied. 

Denial of writ of habeas corpus was 
proper, because life imprisonment for ag- 
gravated robbery was within the statutory 
range, irrespective of any enhancement as 
a habitual offender, and a sentence that 
was within the prescribed range was not 
illegal. Goins v. Norris, 2012 Ark. 192, — 
S.W.3d — (2012). 



5-4-402. Place of imprisonment. 

CASE NOTES 



Jurisdiction. 

Circuit court lacked jurisdiction to con- 
sider the appeal, because the petitioner's 
allegation, in reality, was a challenge to 



the calculation of his parole eligibility and 
the Arkansas Department of Correction's 
application of a parole-eligibility statute 
to his sentence, and the judiciary had no 



39 



DISPOSITION OF OFFENDERS 



5-4-501 



jurisdiction over how parole eligibility was execution. Johnson v. State, 2012 Ark. 
determined or the conditions to be placed 212, — S.W.3d — (2012). 
on it once the sentence was placed into 

5-4-403. Multiple sentences — Concurrent and consecutive 
terms. 

CASE NOTES 



Analysis 

Determination of Sentence. 
Error. 

Determination of Sentence. 

Trial court did not err in sentencing 
defendant after revoking his probation 
because defendant pleaded guilty to sec- 
ond-degree domestic battery, § 5-26-304, 
and third-degree domestic battery, § 5- 
26-305, and his sentences of ten and six 
years, respectively, were sentences that 
could have been originally imposed for the 
offenses of which he was found guilty. 
Jones v. State, 2012 Ark. App. 69, — 
S.W.3d — (2012). 

Trial court could have reasonably con- 
cluded that defendant's commission of five 
new felonies warranted consecutive sen- 
tences, given that the sentences defen- 
dant had received on defendant's previous 
12 felonies had apparently not served to 
deter defendant's criminal conduct. 



Turner v. State, 2012 Ark. App. 150, — 
S.W.3d — (2012). 

Error. 

Applicant was entitled to relief, because 
an error by the Arkansas Department of 
Correction (ADC) in failing to enter the 
Fourth Division conviction and sentence 
in the ADC system caused the failure to 
have the applicant complete his concur- 
rent state sentences before being trans- 
ferred to the United States Bureau of 
Prisons (BOP); the ADC must correct its 
record to show that the applicant began 
serving his Fourth Division sentence on 
the same date he began to serve his Sec- 
ond Division sentence, and upon transfer 
to the ADC from the BOP, the applicant 
must serve whatever remains of the sen- 
tence he would have served in the ADC 
had the ADC run his state sentences con- 
currently as required. Kelley v. Norris, 
2012 Ark. 86, — S.W.3d — (2012). 



Subchapter 5 — Extended Term of Imprisonment 
5-4-501. Habitual offenders — Sentencing for felony. 

RESEARCH REFERENCES 



ALR. Construction and Application of 
U.S. Const. Art. I, § 10, cl. 1, and State 



Constitutional Provisions Proscribing 
State Bills of Attainder. 63 A.L.R.6th 1. 



CASE NOTES 



Analysis 

Information. 
Propriety of Sentence. 
Sentences. 

Information. 

Circuit court did not err in sentencing 
defendant as a habitual offender because 
there was no error in the form of the 
amended felony information; the amended 



felony information incorporated by refer- 
ence the charges included in the original 
information and quoted the habitual-of- 
fender statute, and that was sufficient to 
alert defendant to the fact that he could be 
sentenced as a habitual offender and that 
his prior convictions could be considered 
in assessing an enhanced sentence. Glaze 
v. State, 2011 Ark. 464, — S.W.3d — 
(2011). 
There was no error in the timing of the 



5-4-501 



CRIMINAL OFFENSES 



40 



amendment of the felony information be- 
cause the amendment did not change the 
nature of the crime charged, and there 
was no basis for concluding that defen- 
dant was unfairly surprised by the state's 
amended felony information; prior to the 
filing of the amended felony information, 
defendant received a certified copy of the 
judgment and commitment order convict- 
ing him of three prior felonies. Glaze v. 
State, 2011 Ark. 464, — S.W.3d — (2011). 

Propriety of Sentence. 

Petitioner's 900-month prison sentence 
as a habitual offender for the offenses of 
aggravated robbery, theft of property, and 
two counts of second-degree battery was 
not illegal because the sentence was 
within the range provided in subdivision 
(b)(2)(A) of this section. Reed v. Hobbs, 
2012 Ark. 61, — S.W.3d — (2012). 

Trial court did not err in sentencing 
defendant to 30 years in prison as a ha- 
bitual offender because defendant was 
convicted of four Class C felonies and one 
Class B felony, and therefore faced a maxi- 
mum sentence of 160 years in prison as a 
habitual offender under subdivisions 
(b)(2)(C) and (D) of this section. Turner v. 
State, 2012 Ark. App. 150, — S.W.3d — 
(2012). 

Upon defendant's conviction for rape 
and second-degree battery, the circuit 
court erred in ordering him to complete a 
sex-offender treatment program because 
he was sentenced under § 5-4-401 and 
this section — these statutes did not autho- 
rize the court to order a sex-offender treat- 
ment program. White v. State, 2012 Ark. 
221, — S.W.3d — (2012). 

Inmate's appeal of the denial of the 
inmate's petition to correct an illegal sen- 
tence, pursuant to § 16-90-111, was dis- 
missed because (1) Ark. R. Crim. P. 37.2(b) 
said all postconviction relief grounds cog- 
nizable under Ark. R. Crim. P. 37.1 had to 
be raised in a Rule 37.1 petition filed 
within 90 days of the date of judgment 
when a defendant pled guilty, even though 
Ark. Code Ann. § 16-90-111 let a trial 
court correct an illegal sentence at any 
time, as the statute was superseded to the 
extent the statute conflicted with the 
Rule's time limits, (2) the petition was 
filed over six years after judgment was 
entered, (3) the time limits in Ark. R. 
Crim. P. 37.2 were jurisdictional, denying 
a trial court jurisdiction if the time limits 



were not met, and, on appeal, a reviewing 
court, and (4) the inmate's sentence was 
within the prescribed statutory ranges in 
subdivision (b)(2)(A) of this section and 
§ 5-4-401(b)(l). Redus v. State, 2013 Ark. 
9, — S.W.3d — , 2013 Ark. LEXIS 15 (Jan. 
17, 2013). 

Sentences. 

Circuit court erred in sentencing defen- 
dant under § 16-90-201 because the stat- 
ute was repealed by implication with the 
enactment of this section, and the effect of 
sentencing defendant under § 16-90-201 
was prejudicial since there was the possi- 
bility that the jury would have returned a 
sentence less than the minimum set forth 
in § 16-90-201; because sentencing had to 
be determined by the law in effect at the 
time of the commission of a crime, defen- 
dant was entitled to a jury instruction in 
accordance with this section, the Criminal 
Code's habitual-offender statute. Glaze v. 
State, 2011 Ark. 464, — S.W.3d — (2011). 

General Assembly clearly took up the 
subject matter of the enhanced sentencing 
of habitual offenders anew in this section, 
the more current statute, and the conflict 
between § 16-90-201 and this section is 
irreconcilable, resulting in a repeal by 
implication of § 16-90-201; a plain read- 
ing of this section and § 16-90-201 makes 
clear that this section is the more compre- 
hensive statute, covering the same subject 
matter as § 16-90-201 as well as includ- 
ing additional provisions to provide for the 
sentencing of habitual offenders who are 
convicted of serious and violent felonies, 
and it is further evident that the two 
statutes cannot be read together harmo- 
niously, as the two statutes cannot be read 
together harmoniously, as the sentencing 
ranges prescribed by each statute conflict. 
Glaze v. State, 2011 Ark. 464, — S.W.3d — 
(2011). 

Defendant's sentence was proper under 
§§ 5-4-501 to 5-4-504 because the refer- 
ence, "Attorney: Public Defender," was 
sufficient to prove that defendant was 
represented by counsel regarding his Illi- 
nois conviction for aggravated robbery. 
There was no supplemental testimony ex- 
plaining the reference, but it was clear 
that a "public defender" could only reason- 
ably reference representation for defen- 
dant; thus, the designated reference in the 
pen pack was sufficient to satisfy the 
state's burden in the case. Anthony v. 



41 



DISPOSITION OF OFFENDERS 



5-4-603 



State, 2011 Ark. App. 660, — S.W.3d — 
(2011). 

Denial of writ of habeas corpus was 
proper, because life imprisonment for ag- 
gravated robbery was within the statutory 
range, irrespective of any enhancement as 
a habitual offender, and a sentence that 
was within the prescribed range was not 
illegal. Goins v. Norris, 2012 Ark. 192, — 
S.W.3d — (2012). 

In an aggravated robbery case where 
habitual offender status was at issue, a 
trial court did not err by refusing to give 
the jury an instruction on the sentences 
that appellant had received in federal 
court for prior bank robbery convictions 
because it was within the trial court's 
discretion to do so, pursuant to § 16-97- 



103(2). Walden v. State, 2012 Ark. App. 
307, — S.W.3d — (2012). 

In an aggravated robbery case, an issue 
relating to a motion for a new trial was 
preserved for appellate review because an 
oral motion prior to the entry of the judg- 
ment and commitment order was made in 
open court, the state was aware that the 
motion had been made, and the state was 
given an opportunity to respond. However, 
because appellant received a sentence 
within the statutory range short of the 
maximum, he was not prejudiced by an 
victim-impact statement, and a new trial 
was not warranted; appellant received a 
60-year term of imprisonment, but the 
maximum he could have received was life 
in prison. Walden v. State, 2012 Ark. App. 
307, — S.W.3d — (2012). 



5-4-502. Habitual offenders — Sentencing procedure. 



CASE NOTES 



Instruction. 

In an aggravated robbery case where 
habitual offender status was at issue, a 
trial court did not err by refusing to give 
the jury an instruction on the sentences 
that appellant had received in federal 



court for prior bank robbery convictions 
because it was within the trial court's 
discretion to do so, pursuant to § 16-97- 
103(2). Walden v. State, 2012 Ark. App. 
307, — S.W.3d — (2012). 



Subchapter 6 — Trial and Sentence — Capital Murder 
5-4-602. Capital murder charge — Trial procedure. 

CASE NOTES 



Mitigating Circumstances. 

Granting of petitioner's, an inmate's, 
petition to reinvest jurisdiction in the trial 
court to pursue a petition for writ of error 
coram nobis on the issue of the state's 
failure to disclose a sheriffs report con- 
cerning the inmate's childhood abuse was 



proper because the claim had apparent 
merit, which the circuit court should 
evaluate under subdivision (4)(B)(ii) of 
this section. Howard v. State, 2012 Ark. 
177, — S.W.3d — (2012). 

Cited: Dimas-Martinez v. State, 2011 
Ark. 515, — S.W.3d — (2011). 



5-4-603. Findings required for death sentence — Harmless error 
review. 

CASE NOTES 



Aggravating 
stances. 
Death Penalty. 



Analysis 



or Mitigating Circum- 



Aggravating or Mitigating Circum- 
stances. 

Petitioner's death sentence could not 
stand because the manner in which the 
jury completed its form allowed only the 



5-4-604 



CRIMINAL OFFENSES 



42 



conclusion that it eliminated from its con- 
sideration all evidence presented of miti- 
gating circumstances and sentenced peti- 
tioner to death solely based on an 
aggravating circumstance, which was re- 
versible error. Williams v. State, 2011 Ark. 
534, — S.W.3d — (2011). 

Death Penalty. 

Denial of defendant's motion to prohibit 
the state from seeking the death penalty 



on retrial of the charge of capital murder 
was appropriate because there was no 
acquittal of the death penalty when the 
circuit court imposed the life sentence as 
required by law after the jury deadlocked 
on the penalty issue and then the circuit 
court imposed the sentence of life without 
parole as a matter of law, under subsec- 
tion (c) of this section. Osburn v. State, 
2011 Ark. 406, — S.W.3d — (2011). 



5-4-604. Aggravating circumstances. 

CASE NOTES 

Cited: Dimas-Martinez v. State, 2011 
Ark. 515, — S.W.3d — (2011). 

5-4-605. Mitigating circumstances. 

CASE NOTES 



Trial Proceedings. 

Petitioner's death sentence could not 
stand because the manner in which the 
jury completed its form allowed only the 
conclusion that it eliminated from its con- 
sideration all evidence presented of miti- 



gating circumstances and sentenced peti- 
tioner to death solely based on an 
aggravating circumstance, which was re- 
versible error. Williams v. State, 2011 Ark. 
534, — S.W.3d — (2011). 



5-4-617. Method of execution. 



CASE NOTES 



Analysis 

Constitutionality. 
FOIA Requests. 

Constitutionality. 

Prisoners could do no more than specu- 
late that this section, the Arkansas 
Method of Execution Act, created a signifi- 
cant risk of more painful execution be- 
cause it granted the Director of the Arkan- 
sas Department of Correction the ability 
to omit anesthesia from the protocol. This* 
was not the significant risk of increased 
punishment needed for a violation of the 
Ex Post Facto Clause. Williams v. Hobbs, 
658 F.3d 842 (8th Cir. 2011). 

Supreme Court declared the entirety of 



the Method of Execution Act of 2009 un- 
constitutional. The legislature abdicated 
its responsibility and passed to the De- 
partment of Correction the unfettered dis- 
cretion to determine all protocol and pro- 
cedures, most notably the chemicals to be 
used, for a state execution. Hobbs v. Jones, 
2012 Ark. 293, — S.W.3d — (2012). 

FOIA Requests. 

The plain language of subdivision 
(a)(5)(B) of this section defeated death- 
row prisoners' argument that it prohibited 
disclosure of the quantity, method, and 
order of administration of the chemicals 
because it expressly indicated that such 
information will be available through a 
request under the Arkansas Freedom Of 



43 HOMICIDE 5-10-101 

Information Act of 1967 (FOIA), § 25-19- 
101 et seq. Williams v. Hobbs, 658 F.3d 
842 (8th Cir. 2011). 

5-4-618. Mental retardation. 

CASE NOTES 

Determinative Factors. sel's testimony established that, because 

Denial of appellant's, an inmate's, peti- the inmate's IQ fell at the pivotal point of 

tion for postconviction relief was appropri- 65, that was a strategic decision not to 

ate because he alleged only bare conclu- pursue further the issue of the inmate's 

sions and had not overcome the iq an d mental retardation. Anderson v. 

presumption of trial counsel's competence state, 2011 Ark. 488, — S.W.3d — (2011). 

by identifying specific acts and omissions Cited: Dimas-Martinez v. State, 2011 

that could not have been the result of ^.^ 5-^5 SW3d (2011) 

reasonable professional judgment. Coun- 

SUBCHAPTER 7 ENHANCED PENALTIES FOR CERTAIN OFFENSES 

5-4-702. Enhanced penalties for offenses committed in presence 
of a child. 

CASE NOTES 

Evidence. call, defendant's wife stated that defen- 

Evidence was sufficient to convict defen- dant choked her, she could not breathe, 

dant of committing aggravated assault and he threatened to kill her, all in the 

and terroristic threatening in the pres- presence of their child. Mathis v. State, 

ence of a child, his infant son; in her 911 2012 Ark. App. 285, — S. W.3d — (2012). 

SUBTITLE 2. OFFENSES AGAINST THE PERSON 

CHAPTER 10 
HOMICIDE 

5-10-101. Capital murder. 

RESEARCH REFERENCES 

ALR. Sufficiency of Evidence to Support 
Homicide Conviction Where No Body Was 
Produced. 65 A.L.R.6th 359. 

CASE NOTES 

Analysis Double Jeopardy. 

Defendant convicted of capital murder, 
Double Jeopardy. attempted capital murder, and aggra- 

Evidence. vated robbery failed to show that his 

Premeditation and Deliberation. double jeopardy rights were violated; un- 



5-10-101 



CRIMINAL OFFENSES 



44 



der subdivision (d)(1)(A) of this section, 
separate convictions and sentences were 
authorized for both the capital murder 
and the felony underlying the capital- 
murder charge. Jackson v. State, 2013 
Ark. 19, — S.W.3d — , 2013 Ark. LEXIS 27 
(Jan. 24, 2013). 

Evidence. 

Defendant's concession that defendant 
participated in an aggravated robbery 
presented adequate grounds to support 
defendant's conviction for capital-felony 
murder; it was patently clear that the 
victim was killed in furtherance of an 
aggravated robbery that was planned and 
executed by defendant. Whiteside v. State, 
2011 Ark. 371, — S.W.3d — (2011). 

Defendant's conviction for capital-mur- 
der under subdivision (a)(4) of this section 
was appropriate because the evidence was 
sufficient. When confronted with the in- 
consistencies between the testimony of his 
daughter's mother and defendant's testi- 
mony, the jury believed the mother and 
found that defendant acted with premedi- 
tation and deliberation by taking the shot- 
gun to the house, walking to the porch, 
loading the gun, and firing at the victim 
after she threw her hands in surrender. 
Williams v. State, 2011 Ark. 432, — 
S.W.3d — (2011). 

Defendant's conviction for capital- 
felony murder under subdivision (a)(1) of 
this section and § 5-12-103(a)(3) was ap- 
propriate because the evidence was suffi- 
cient. The last number dialed on the vic- 
tim's cellular phone was to a phone 
registered to defendant and a fellow pris- 
oner testified that defendant confessed to 
selling drugs to the victim, robbing and 
shooting him, and then leaving him on the 
road. Dixon v. State, 2011 Ark. 450, — 
S.W3d — (2011). 

Defendant's conviction for capital mur- 
der under subdivision (a)(4) of this section 
was proper because the circuit court did 
not err in denying his motion for a di- 
rected verdict. Defendant's stabbing of the 
victim brought about the officers' use of 
deadly force that killed the victim; had 
defendant not been stabbing her, the offi- 
cers would not have attempted to end 
defendant's attack on her by using deadly 
force. Anderson v. State, 2011 Ark. 461, — 
S.W.3d — (2011). 

Substantial evidence supported defen- 
dant's conviction for capital murder, in 



violation of subdivision (a)(1)(B) of this 
section, because the state offered evidence 
to corroborate defendant's confession; the 
state presented evidence that the murder 
victim died at the hands of another. Mead- 
ows v. State, 2012 Ark. 57, — S.W.3d — 
(2012). 

Trial court did not err by denying defen- 
dant's motion for a directed verdict be- 
cause the evidence was sufficient to sup- 
port his capital murder conviction, as it 
showed that: (1) prior to the victim's 
death, defendant bragged to a witness 
that he was going to kill someone; (2) 
several hours later, an eyewitness was in 
the cab of the truck sitting between defen- 
dant and the victim when defendant be- 
gan stabbing the victim repeatedly with a 
knife; (3) two other witnesses who stopped 
to help heard defendant admit that he had 
stabbed the victim and saw defendant toss 
the knife into the back of the truck; (4) one 
witness heard defendant tell the eyewit- 
ness that they needed to take the truck 
and get rid of the body; (5) the knife was 
recovered from the truck and blood on it 
matched the victim; (6) defendant identi- 
fied the knife as his own; (7) the victim 
died as a result of multiple stab wounds 
that were consistent with the knife that 
was recovered from the truck; and (8) 
although there was testimony that defen- 
dant was intoxicated on the night of the 
murder, voluntary intoxication was not a 
defense. Leach v. State, 2012 Ark. 179, — 
S.W.3d — (2012). 

Evidence was sufficient to sustain de- 
fendant's convictions for capital murder 
and aggravated robbery because defen- 
dant drove his accomplice to the victim's 
house, defendant admitted to hitting the 
victim over the head, and the evidence 
illustrated he wanted to harm the victim 
because he did it again after he stated 
that the victim was not fazed. Addition- 
ally, the victim's wallet was taken from 
the house. Laswell v. State, 2012 Ark. 201, 
— S.W.3d — (2012). 

Premeditation and Deliberation. 

Armed defendant's statements to a 
bank courier, "Come on with the bags, 
don't make me kill you," along with his 
firing the gun three times, provided evi- 
dence of deliberation by showing that he 
considered killing the courier, supporting 
his conviction for attempted premeditated 
capital murder. Ali v. State, 2011 Ark. 
App. 758, — S.W3d — (2011). 



45 HOMICIDE 

5-10-102. Murder in the first degree. 

RESEARCH REFERENCES 



5-10-102 



ALR. Sufficiency of Evidence to Support 
Homicide Conviction Where No Body Was 
Produced. 65 A.L.R.6th 359. , 



CASE NOTES 



Analysis 

Assistance of Counsel. 

Evidence. 

Indictment or Information. 

Instructions. 

Intent. 

Assistance of Counsel. 

Denial of appellant's, an inmate's, peti- 
tion for postconviction relief was proper 
because, while he was not able to directly 
appeal any challenge to the sufficiency of 
the evidence, there was substantial evi- 
dence to support his felony-murder convic- 
tion. He failed to demonstrate that he was 
prejudiced by trial counsel's error in fail- 
ing to make a directed-verdict motion on 
the lesser-included charge of first-degree 
felony murder under subdivision (a)(1) of 
this section. Lockhart v. State, 2011 Ark. 
396, — S.W3d — (2011). 

Evidence. 

Denial of appellant's, an inmate's, peti- 
tion for postconviction relief pursuant to 
Ark. R. Crim. P. 37.1 was appropriate 
because the evidence demonstrated that 
he was not prejudiced by his trial coun- 
sel's failure to properly renew his motion 
for directed verdict at the close of all the 
evidence. While the inmate was unable to 
challenge the sufficiency of the evidence in 
his direct appeal, there was substantial 
evidence to support the verdicts, including 
the inmate himself admitting to hitting 
his wife's car from behind and then get- 
ting out of his truck and shooting her; the 
surviving victim testified that after falling 
in an attempt to run away from the scene, 
she looked up and saw the inmate over her 
smiling and holding a shotgun. Davis v. 
State, 2011 Ark. 493, — S.W3d — (2011). 

Defendant's convictions for first-degree 
murder and aggravated robbery, in viola- 
tion of subsection (a) of this section and 
§§ 5-3-201 and 5-12-103(a), were sup- 



ported by sufficient evidence, as the evi- 
dence showed that defendant was armed 
with a deadly weapon for the purpose of 
committing the theft of a cab driver, that 
defendant threatened the driver, and that 
the driver was shot in the struggle over 
the gun. Garr v. State, 2011 Ark. App. 509, 
— S.W3d — (2011). 

Evidence was sufficient to convict defen- 
dant of first-degree murder under subdi- 
vision (a)(2) of this section because the 
three gunshot wounds to the victim alone, 
at least two of which were fired 35-40 
seconds apart, ran counter to defendant's 
accidental shooting theory; and the evi- 
dence supported an inference of purpose- 
ful intent under § 5-2-202(1). Smith v. 
State, 2012 Ark. App. 359, — S.W.3d — 
(2012). 

Appellant's first-degree murder convic- 
tion was affirmed because there was evi- 
dence that appellant had previously dis- 
cussed robbing the victim by bashing in 
his head, there was evidence that appel- 
lant owed the victim money and had been 
cut off from his supply of drugs, and there 
was evidence that it would be very diffi- 
cult for the gun to go off accidentally. 
McClard v. State, 2012 Ark. App. 573, — 
S.W.3d — (2012). 

Evidence was sufficient to sustain de- 
fendant's attempted first-degree murder 
conviction because defendant knocked on 
a door and fired a gun at the victim when 
he opened the door. The jury could reason- 
ably have inferred that defendant pur- 
posely engaged in conduct that consti- 
tuted a substantial step in a course of 
conduct known to cause death to another 
person, regardless of that person's iden- 
tity. Wells v. State, 2012 Ark. App. 596, — 
S.W3d— , 2012 Ark. App. LEXIS 718 (Oct. 
24, 2012). 

Indictment or Information. 

In a murder case, the trial court did not 
err in allowing the state to amend the 



5-10-103 



CRIMINAL OFFENSES 



46 



information on the morning of trial to 
include a felony-firearm enhancement. 
Because the charge defendant was tried 
for was contained in the original informa- 
tion, the reviewing court failed to see how 
defendant was unfairly surprised or oth- 
erwise prejudiced by the amended infor- 
mation. Plessy v. State, 2012 Ark. App. 74, 
— S.W.3d — (2012). 

Instructions. 

Petitioner was properly denied postcon- 
viction relief because the jury was in- 
structed as to the mental state required 
for each of the degrees of homicide, the 
jury considered the evidence presented at 
trial, and the jury found that petitioner 
had the requisite mental state for a first- 
degree-murder conviction; petitioner's 



conviction meant that the jury had found 
that petitioner had the requisite mental 
state for first-degree murder. Strain v. 
State, 2012 Ark. 184, — S.W.3d — (2012). 

Intent. 

Evidence was sufficient to support a 
finding of intent for the purpose of first- 
degree murder, in violation of subdivision 
(a)(2) of this section, because the victim 
was shot at least seven times and suffered 
several gunshot wounds to the back and 
front of the body; evidence of defendant's 
flight immediately after the murder fur- 
ther supported the verdict. Wells v. State, 
2012 Ark. App. 276, — S.W.3d — (2012). 

Cited: Holian v. State, 2013 Ark. 7, — 
S.W.3d — , 2013 Ark. LEXIS 11 (Jan. 17, 
2013). 



5-10-103. Murder in the second degree. 

RESEARCH REFERENCES 

ALR. Sufficiency of Evidence to Support 
Homicide Conviction Where No Body Was 
Produced. 65 A.L.R.6th 359. 

CASE NOTES 



Evidence. 

Appellant's conviction for second-degree 
murder was affirmed because the pattern 
of the gunshots, which were aimed at the 
victim's chest and upper-arm area, as well 
as the trajectory of the bullets showed 
that appellant acted deliberately in a 
manner that would naturally and prob- 
ably culminate in the victim's death. Phil- 
lips v. State, 2011 Ark. App. 575, — S.W3d 
— (2011). 

In reviewing the evidence to support 
appellant's second-degree murder convic- 
tion, the court would not consider a 911 
call because the record did not contain a 
verbatim record of the call as the jury 
heard it and because the call was not 



properly abstracted. Rainer v. State, 2012 
Ark. App. 588, — S.W.3d — , 2012 Ark. 
App. LEXIS 715 (Oct. 24, 2012). 

Evidence was sufficient to affirm the 
finding that appellant caused the victim's 
death with the purpose of causing her 
serious physical injury, and thus appel- 
lant's second-degree murder conviction 
was affirmed; there were many signs of a 
fight, including blood spatters and a trail 
of blood, appellant's thumbprint was on 
the murder weapon, the location of the 
victim's wound was not consistent with a 
fall, and the victim called for help, not 
appellant. Rainer v. State, 2012 Ark. App. 
588, — S.W3d — , 2012 Ark. App. LEXIS 
715 (Oct. 24, 2012). 



47 



HOMICIDE 



5-10-105 



5-10-104. Manslaughter. 



CASE NOTES 



Analysis 

Evidence. 

Lesser Included Offenses. 

Evidence. 

Appellant's conviction for manslaughter 
was affirmed because while a no-knock, 
nighttime search warrant was executed at 
appellant's apartment, shots were fired as 
soon as the SWAT team hit the door, the 
police returned fire, two police officers 
were shot, and two persons inside the 
residence were shot. Porter v. State, 2012 
Ark. App. 139, — S.W.3d — (2012). 

Lesser Included Offenses. 

In a case in which a jury convicted 
defendant of capital murder in the shoot- 

5-10-105. Negligent homicide. 



ing death of his ex-wife, the trial court 
properly refused to instruct the jury on 
reckless manslaughter and negligent ho- 
micide. Defendant, who fired once into a 
residence, mortally striking his ex- wife in 
the back, offered no rational basis to sup- 
port giving either instruction on the basis 
that his actions were reckless or negli- 
gent. Jones v. State, 2012 Ark. 38, — 
S.W.3d — (2012). 

Cited: Holian v. State, 2013 Ark. 7, — 
S.W.3d — , 2013 Ark. LEXIS 11 (Jan. 17, 
2013). 



CASE NOTES 



Analysis 

Expungement. 

Instructions. 

Intoxication. 

Expungement. 

Circuit court erred by sealing the appli- 
cant's conviction for negligent-homicide 
pursuant to this section, because given 
the plain meaning of this section, the 
statute lacked any provision for expunge- 
ment. State v. Martin, 2012 Ark. 191, — 
S.W.3d — (2012). 

Instructions. 

In a case in which a jury convicted 
defendant of capital murder in the shoot- 
ing death of his ex-wife, the trial court 
properly refused to instruct the jury on 
reckless manslaughter and negligent ho- 
micide. Defendant, who fired once into a 
residence, mortally striking his ex-wife in 
the back, offered no rational basis to sup- 
port giving either instruction on the basis 
that his actions were reckless or negli- 
gent. Jones v. State, 2012 Ark. 38, — 
S.W.3d — (2012). 

Because there was no negligent behav- 
ior on the part of defendant pursuant to 



§ 5-2-202(4), his action were purposeful, 
and a firearm and toolmark examiner for 
the Arkansas State Crime Lab testified 
that for the gun to be fired, the trigger had 
to be pulled, which usually required five to 
five and a half pounds of pressure, the 
trial court did not err in refusing to give 
the jury an instruction on negligent homi- 
cide under subdivision (b)(1) of this sec- 
tion. Ratterree v. State, 2012 Ark. App. 
701, — S.W.3d — , 2012 Ark. App. LEXIS 
821 (Dec. 12, 2012). 

Intoxication. 

Although the circuit court erred in al- 
lowing the results of defendant's blood- 
alcohol test into evidence since the state 
failed to provide evidence that the blood 
was drawn by a physician or a person 
acting under the direction and supervi- 
sion of a physician as required by § 5-65- 
204, defendant was properly convicted of 
negligent homicide in violation of this 
section and aggravated assault in viola- 
tion of § 5-13-204 because there was over- 
whelming evidence of defendant's intoxi- 
cation; while the only evidence regarding 
the concentration of alcohol in defendant's 
blood came from the blood test, there was 
sufficient evidence at trial to support de- 



5-11-101 



CRIMINAL OFFENSES 



48 



fendant's conviction on the alternative 
theory that defendant negligently caused 
the victim's death as a result of operation 
of a motor vehicle while intoxicated. Bates 
v. State, 2011 Ark. App. 446, — S.W.3d — 
(2011). 

In a case in which defendant was con- 
victed of negligent homicide under subdi- 
vision (a)(1)(a) of this section, there was 
substantial evidence that defendant was 
intoxicated at the time of the accident 
where: (1) defendant admitted at trial 
that he had smoked marijuana earlier in 
the day of the accident and that he had 
ingested a pill and a half of Xanax shortly 



before the accident occurred; (2) the driver 
of a tractor-trailer rig testified that defen- 
dant's vehicle veered into his lane and 
narrowly missed his vehicle and that he 
saw defendant continue on the wrong side 
of the road for approximately three- 
fourths of a mile, without correcting, be- 
fore striking the victims' vehicles; and (3) 
another driver testified that he drove off 
the shoulder of the road to avoid defen- 
dant's vehicle and that, when defendant 
passed him, defendant was leaning 
against the driver-side door of his vehicle 
and appeared to be asleep. Ross v. State, 
2012 Ark. App. 243, — S.W.3d — (2012). 



CHAPTER 11 
KIDNAPPING AND RELATED OFFENSES 



5-11-101. Definitions. 



CASE NOTES 



Restraint Without Consent. 

Counsel was not ineffective for failing to 
move for a directed verdict on the issue of 
the amount of restraint used to commit a 
kidnapping because the state presented 
substantial evidence that defendant used 



deception to restrain the victim under 
subdivision (3)(A) of this section; defen- 
dant told the victim he was a police officer 
and showed her a badge, which consti- 
tuted deception. Prater v. State, 2012 Ark. 
164, — S.W.3d — (2012). 



5-11-102. Kidnapping. 



CASE NOTES 



Analysis 

Conspiracy. 

Restraint. 

Sentencing. 

Voluntary Release of Victim. 

Conspiracy. 

Defendant committed an overt act in 
furtherance of a conspiracy to commit 
kidnapping, aggravated robbery, theft of 
property, and aggravated residential bur- 
glary because he took another person to 
his residence and showed the person the 
inside of the premises, discussed how to 
break in the residence and how to subdue 
his wife, and identified the property to be 
taken from the residence. Winkler v. 
State, 2012 Ark. App. 704, — S.W.3d — , 
2012 Ark. App. LEXIS 825 (Dec. 12, 2012). 



Restraint. 

Counsel was not ineffective for failing to 
move for a directed verdict on the issue of 
the amount of restraint used to commit a 
kidnapping, in violation of subdivision 
(a)(5) of this section, because the state 
presented substantial evidence that de- 
fendant used deception to restrain the 
victim; defendant told the victim he was a 
police officer and showed her a badge, 
which constituted deception. Prater v. 
State, 2012 Ark. 164, — S.W.3d — (2012). 

Sentencing. 

In a case where probation was revoked, 
a 20-year sentence for Class B felony 
kidnapping was not improper since it was 
authorized under § 5-4-40 1(a)(3); the ap- 
pellate court was unable to reduce a sen- 
tence within the range of punishment 
contemplated by the Arkansas Legisla- 



49 



ROBBERY 



5-12-102 



ture. Moreover, since appellant failed to 
object to the sentence imposed, he was 
unable to argue on appeal that the trial 
court erred by failing to consider alterna- 
tives to the 20-year sentence. Pfeifer v. 
State, 2012 Ark. App. 556, — S.W.3d — 
(2012). 

Voluntary Release of Victim. 

Trial court did not err in denying defen- 
dant's motion for a directed verdict to 



reduce the kidnapping charge from a 
Class Y felony to a Class B felony under 
subdivisions (b)(1) and (2) of this section 
because defendant released the victim 
based on her resistance, and because he 
did not leave her in a safe place when he 
left her in the path of his vehicle. Huff v. 
State, 2012 Ark. 388, — S.W.3d — (2012). 



5-12-102. Robbery. 



CHAPTER 12 
ROBBERY 

CASE NOTES 



Analysis 

Accomplice. 

Evidence. 

Lesser Included Offenses. 

Sufficiency of Evidence. 

Threat of Force. 

Accomplice. 

There was sufficient evidence tending to 
connect defendant to an aggravated rob- 
bery and thus to corroborate accomplice 
testimony because surveillance video es- 
tablished the commission of the crime and 
an officer testified that defendant 
matched the description of a robber in the 
video based on his height and that the 
officer confirmed the truth of identifying 
information from a non-accomplice. Smith 
v. State, 2012 Ark. App. 534, — S.W.3d — 
(2012). 

Evidence. 

Evidence was sufficient to sustain de- 
fendant's convictions for capital murder 
and aggravated robbery because defen- 
dant drove his accomplice to the victim's 
house, defendant admitted to hitting the 
victim over the head, and the evidence 
illustrated he wanted to harm the victim 
because he did it again after he stated 
that the victim was not fazed. Addition- 
ally, the victim's wallet was taken from 
the house. Laswell v. State, 2012 Ark. 201, 
— S.W.3d — (2012). 



Lesser Included Offenses. 

Trial court did not err in failing to give a 
jury an instruction on simple robbery, 
which was a lesser-included offense of 
aggravated robbery, because defendant 
essentially argued that defendant did not 
commit any offense at all; hence, there 
was no rational basis for the giving of a 
lesser-included offense instruction. Nick- 
elson v. State, 2012 Ark. App. 363, — 
S.W.3d — (2012). 

Counsel complied with Ark. Sup. Ct. & 
Ct. App. R. 4-3(k), and appellant's appeal 
from his aggravated robbery conviction 
and sentence lacked merit because (1) the 
sufficiency of the evidence was not pre- 
served for appellate review as counsel's 
motion for directed verdict failed to state 
with specificity the deficiency in the 
state's evidence, in contravention of Ark. 
R. Crim. P. 33.1; (2) there was no merit to 
appellant's chain-of-custody argument to 
the items found in his car pursuant to a 
search warrant as there was no evidence 
of tampering presented, and there was 
testimony that the items were logged into 
evidence and remained in the evidence 
room until the trial; (3) it was undisputed 
that an armed robbery took place under 
§ 5-12-103(a)(l), so it was not an error to 
refuse to give an instruction on the lesser- 
included offense of robbery under subsec- 
tion (a) of this section; and (4) appellant 
could not raise an ineffective assistance of 
counsel claim or challenge the qualifica- 



5-12-103 



CRIMINAL OFFENSES 



50 



tions of jurors for the first time on appeal. 
Mace v. State, 2012 Ark. App. 420, — 
S.W.3d — (2012). 

Jury instruction on the lesser-included 
offense of attempted aggravated robbery 
was not warranted because there was no 
evidence of the offense of attempt under 
§ 5-3-20 1(a)(2); when appellant stormed 
out of a retail store's stockroom brandish- 
ing a gun and pointing it employees, he 
actually completed the offense of aggra- 
vated robbery. Thomas v. State, 2012 Ark. 
App. 466, — S.W.3d — (2012). 

Sufficiency of Evidence. 

Appellant's convictions for aggravated 
robbery, aggravated residential burglary, 
and misdemeanor fleeing were affirmed 
where a witness testified that appellant 
pointed a sawed-off shotgun at his head, 
which would necessarily constitute proof 
that appellant was "armed with a deadly 
weapon"; the testimony of one eyewitness 
was sufficient to sustain a conviction. Ri- 



ley v. State, 2011 Ark. App. 511, — S.W.3d 
— (2011). 

There was sufficient evidence to sustain 
an aggravated robbery conviction under 
this section because there was a verbal 
representation in a note; there was no 
requirement that the threat of physical 
harm be made directly or indirectly, only 
that physical force be immediately threat- 
ened, however the threat was communi- 
cated. Walden v. State, 2012 Ark. App. 
307, — S.W.3d — (2012). 

Threat of Force. 

Although defendant shot the victim 
three times as the result of an inadvertent 
collision with the victim as the victim 
attempted to run, actual physical force 
was not required to convict defendant of 
aggravated robbery. His possession of a 
gun and his threat to employ the gun were 
sufficient to support his conviction under 
this section and § 5-12-103. Ali v. State, 
2011 Ark. App. 758, — S.W.3d — (2011). 



5-12-103. Aggravated robbery. 



RESEARCH REFERENCES 



ALR. Parts of Human Body, other than 
Feet, as Deadly or Dangerous Weapons or 
Instrumentalities for Purposes of Statutes 



Aggravating Offenses such as Assault and 
Robbery. 67 A.L.R.6th 103. 



CASE NOTES 



Analysis 

Accomplice. 

Conspiracy. 

Double Jeopardy. 

Elements. 

Evidence. 

Lesser Included Offense. 

Lesser Included Offenses. 

Representation of Deadly Weapon. 

Sentence. 

Accomplice. 

There was sufficient evidence tending to 
connect defendant to an aggravated rob- 
bery and thus to corroborate accomplice 
testimony because surveillance video es- 
tablished the commission of the crime and 
an officer testified that defendant 
matched the description of a robber in the 
video based on his height and that the 
officer confirmed the truth of identifying 
information from a non-accomplice. Smith 



v. State, 2012 Ark. App. 534, — S.W.3d — 
(2012). 

Conspiracy. 

Defendant committed an overt act in 
furtherance of a conspiracy to commit 
kidnapping, aggravated robbery, theft of 
property, and aggravated residential bur- 
glary because he took another person to 
his residence and showed the person the 
inside of the premises, discussed how to 
break in the residence and how to subdue 
his wife, and identified the property to be 
taken from the residence. Winkler v. 
State, 2012 Ark. App. 704, — S.W3d — , 
2012 Ark. App. LEXIS 825 (Dec. 12, 2012). 

Double Jeopardy. 

Trial court did not err in determining 
that consecutive sentencing for aggra- 
vated robbery, under subdivision (a)(1) of 
this section, first-degree terroristic threat- 
ening, § 5- 13-30 1(a)(1)(A), and second-de- 



51 



ROBBERY 



5-12-103 



gree battery, § 5-13-202(a)(2), did not vio- 
late the prohibition against double 
jeopardy in Ark. Const. Art. 2, § 8 and the 
Fifth Amendment because neither first- 
degree terroristic threatening nor second- 
degree battery was a lesser-included of- 
fense of aggravated robbery since both 
crimes required proof of additional facts 
not required by aggravated robbery; the 
offense of first-degree terroristic threaten- 
ing requires the elements of threatening 
to cause the death of the victim and the 
purpose of terrorizing the victim, and a 
conviction for second-degree battery re- 
quires proof of purposely causing physical 
injury to the victim. Walker v. State, 2012 
Ark. App. 61, — S.W.3d — (2012). 

Elements. 

Although defendant shot the victim 
three times as the result of an inadvertent 
collision with the victim as the victim 
attempted to run, actual physical force 
was not required to convict defendant of 
aggravated robbery. His possession of a 
gun and his threat to employ the gun were 
sufficient to support his conviction under 
§ 5-12-102 and this section. Ali v. State, 
2011 Ark. App. 758, — S.W.3d — (2011). 

Evidence. 

Defendant's concession that defendant 
participated in an aggravated robbery 
presented adequate grounds to support 
defendant's conviction for capital-felony 
murder; it was patently clear that the 
victim was killed in furtherance of an 
aggravated robbery that was planned and 
executed by defendant. Whiteside v. State, 
2011 Ark. 371, — S.W3d — (2011). 

Defendant's conviction for capital- 
felony murder under § 5-10-101(a)(l) and 
subdivision (a)(3) of this section was ap- 
propriate because the evidence was suffi- 
cient. The last number dialed on the vic- 
tim's cellular phone was to a phone 
registered to defendant and a fellow pris- 
oner testified that defendant confessed to 
selling drugs to the victim, robbing and 
shooting him, and then leaving him on the 
road. Dixon v. State, 2011 Ark. 450, — 
S.W3d — (2011). 

Defendant's convictions for first-degree 
murder and aggravated robbery, in viola- 
tion of §§ 5-10-102(a) and 5-3-201 and 
subsection (a) of this section, were sup- 
ported by sufficient evidence, as the evi- 
dence showed that defendant was armed 



with a deadly weapon for the purpose of 
committing the theft of a cab driver, that 
defendant threatened the driver, and that 
the driver was shot in the struggle over 
the gun. Garr v. State, 2011 Ark. App. 509, 

— S.W3d — (2011). 

Appellant's convictions for aggravated 
robbery, aggravated residential burglary, 
and misdemeanor fleeing were affirmed 
where a witness testified that appellant 
pointed a sawed-off shotgun at his head, 
which would necessarily constitute proof 
that appellant was "armed with a deadly 
weapon"; the testimony of one eyewitness 
was sufficient to sustain a conviction. Ri- 
ley v. State, 2011 Ark. App. 511, — S.W.3d 

— (2011). 

Evidence was sufficient to sustain de- 
fendant's aggravated robbery conviction 
because he brandished a weapon, which 
was a communicated threat, and it was 
done while defendant was essentially ask- 
ing if the victim had anything of value. 
The fact that defendant did not actually 
take anything else from the victim while 
in possession of the firearm was not fatal 
to his conviction. Butler v. State, 2011 Ark. 
App. 708, — S.W3d — (2011). 

Evidence was sufficient to sustain de- 
fendant's convictions for capital murder 
and aggravated robbery because defen- 
dant drove his accomplice to the victim's 
house, defendant admitted to hitting the 
victim over the head, and the evidence 
illustrated he wanted to harm the victim 
because he did it again after he stated 
that the victim was not fazed. Addition- 
ally, the victim's wallet was taken from 
the house. Laswell v. State, 2012 Ark. 201, 

— S.W3d — (2012). 

There was sufficient evidence to sustain 
an aggravated robbery conviction under 
this section because there was a verbal 
representation in a note; there was no 
requirement that the threat of physical 
harm be made directly or indirectly, only 
that physical force be immediately threat- 
ened, however the threat was communi- 
cated. Walden v. State, 2012 Ark. App. 
307, — S.W3d — (2012). 

Trial court did not err in denying defen- 
dant's motion for a directed verdict on an 
aggravated robbery charge, in violation of 
subdivisions (a)(1) and (2) of this section, 
because substantial evidence supported 
the conviction; according to defendant's 
own statement to the police, defendant 
participated in the planning of the rob- 



5-12-103 



CRIMINAL OFFENSES 



52 



bery by driving accomplices around town 
in order to case possible bank targets. 
Nickelson v. State, 2012 Ark. App. 363, — 
S.W.3d — (2012). 

Lesser Included Offense. 

Trial court did not err in failing to give a 
jury an instruction on simple robbery, 
which was a lesser-included offense of 
aggravated robbery, in violation of subdi- 
visions (a)(1) and (2) of this section, be- 
cause defendant essentially argued that 
defendant did not commit any offense at 
all; hence, there was no rational basis for 
the giving of a lesser-included offense in- 
struction. Nickelson v. State, 2012 Ark. 
App. 363, — S.W.3d — (2012). 

Jury instruction on the lesser-included 
offense of attempted aggravated robbery 
was not warranted because there was no 
evidence of the offense of attempt under 
§ 5-3-201(a)(2); when appellant stormed 
out of a retail store's stockroom brandish- 
ing a gun and pointing it employees, he 
actually completed the offense of aggra- 
vated robbery. Thomas v. State, 2012 Ark. 
App. 466, — S.W.3d — (2012). 

Lesser Included Offenses. 

Counsel complied with Ark. Sup. Ct. & 
Ct. App, R. 4-3(k), and appellant's appeal 
from his aggravated robbery conviction 
and sentence lacked merit because (1) the 
sufficiency of the evidence was not pre- 
served for appellate review as counsel's 
motion for directed verdict failed to state 
with specificity the deficiency in the 
state's evidence, in contravention of Ark. 
R. Crim. P. 33.1; (2) there was no merit to 
appellant's chain-of-custody argument to 
the items found in his car pursuant to a 
search warrant as there was no evidence 
of tampering presented, and there was 
testimony that the items were logged into 
evidence and remained in the evidence 
room until the trial; (3) it was undisputed 



that an armed robbery took place under 
subdivision (a)(1) of this section , so it was 
not an error to refuse to give an instruc- 
tion on the lesser-included offense of rob- 
bery under § 5- 12- 102(a); and (4) appel- 
lant could not raise an ineffective 
assistance of counsel claim or challenge 
the qualifications of jurors for the first 
time on appeal. Mace v. State, 2012 Ark. 
App. 420, — S.W.3d — (2012). 

Representation of Deadly Weapon. 

Defendant's conviction for aggravated 
robbery, in violation of subdivision (a)(2) 
of this section, was supported by the evi- 
dence because, based on the victim's tes- 
timony, the jury could have inferred that 
the victim believed defendant was show- 
ing a second victim some sort of weapon 
during the bank robbery. Feuget v. State, 
2012 Ark. App. 182, — S.W.3d — (2012). 

Sentence. 

Denial of writ of habeas corpus was 
proper, because life imprisonment for ag- 
gravated robbery was within the statutory 
range, irrespective of any enhancement as 
a habitual offender, and a sentence that 
was within the prescribed range was not 
illegal. Goins v. Norris, 2012 Ark. 192, — 
S.W.3d — (2012). 

In an aggravated robbery case, a trial 
court did not abuse its discretion by ad- 
mitting evidence at sentencing of appel- 
lant's participation in a prior robbery; it 
was of no consequence that appellant had 
not yet been convicted in the robbery at 
issue. As to relevance, the fact that appel- 
lant was an active participant in two rob- 
beries, just days apart and committed in 
nearly the same fashion, was relevant 
character evidence and was evidence of 
aggravated circumstances showing his 
propensity to engage in similar criminal 
conduct. Thomas v. State, 2012 Ark. App. 
466, — S.W.3d — (2012). 



53 



ASSAULT AND BATTERY 



5-13-202 



CHAPTER 13 
ASSAULT AND BATTERY 

Subchapter 2 — Offenses Generally 

5-13-201. Battery in the first degree. 

RESEARCH REFERENCES 



ALR. Parts of Human Body, other than 
Feet, as Deadly or Dangerous Weapons or 
Instrumentalities for Purposes of Statutes 



Aggravating Offenses such as Assault and 
Robbery. 67 A.L.R.6th 103. 



CASE NOTES 



Evidence. 

Defendant, while in a drunken rage, 
intentionally shot an unarmed person 
who was 15 feet away and trying to help 
calm him; the evidence was sufficient for 
the jury to conclude that defendant in- 



tended to shoot the victim and cause her 
harm, rather than to defend himself. 
Stocker v. State, 2012 Ark. App. 624, — 
S.W.3d — , 2012 Ark. App. LEXIS 753 
(Nov. 7, 2012). 



5-13-202. Battery in the second degree. 

RESEARCH REFERENCES 



ALR. Parts of Human Body, other than 
Feet, as Deadly or Dangerous Weapons or 
Instrumentalities for Purposes of Statutes 



Aggravating Offenses such as Assault and 
Robbery. 67 A.L.R.6th 103. 



CASE NOTES 



Analysis 

Crime of Violence. 

Evidence. 

Lesser Included Offenses. 

Separate Offenses. 

Crime of Violence. 

Defendant's sentence as a career-of- 
fender under U.S. Sentencing Guidelines 
Manual § 4B1.1 was vacated because a 
district court erred by failing to apply the 
modified categorical approach to deter- 
mine whether defendant's prior conviction 
for second-degree battery in violation of 
subsection (a) of this section was for a 
crime of violence. United States v. Dawn, 
— F.3d — , 2012 U.S. App. LEXIS 13218 
(8th Cir. June 28, 2012). 

Evidence. 

Defendant convicted of the lesser-in- 
cluded offense of second-degree battery 



waived a challenge to the sufficiency of the 
evidence supporting his conviction where 
he did not argue in his motions for di- 
rected verdict that an element of second- 
degree battery was not proven. Chestang 
v. State, 2012 Ark. App. 222, — S.W.3d — 
(2012). 

Defendant's conviction for second-de- 
gree battery, in violation of subdivison 
(a)(4)(C) of this section, was supported by 
the evidence because the number of 
bruises on his girlfriend's 23-month-old 
son and the unusual force necessary to 
cause them, as testified to by an emer- 
gency room pediatrician, provided proof 
that he knowingly caused physical injury 
under § 5-2-202(2)(B). Hahn v. State, 
2012 Ark. App. 297, — S.W.3d — (2012). 

Substantial evidence supported a juve- 
nile's second-degree battery disposition, 
in violation of § subdivisions (a)(l)-(3) of 
this section, based on accomplice liability 



5-13-203 



CRIMINAL OFFENSES 



54 



because a codefendant testified that the 
juvenile solicited and encouraged the plan 
to beat her boyfriend, who she suspected 
of cheating; the juvenile could be found 
guilty of the conduct of her accomplices 
who threw the punches. L.C. v. State, 
2012 Ark. App. 666, — S.W.3d — , 2012 
Ark. App. LEXIS 782 (Nov. 28, 2012). 

Lesser Included Offenses. 

To the extent that defendant convicted 
of second-degree battery attempted to ar- 
gue that the jury should have been in- 
structed on third-degree battery as a 
lesser-included offense because the jury 
could have rationally found him to have 
recklessly caused the injuries to the vic- 
tim, his argument was not preserved, be- 
cause although he proffered an instruc- 
tion on third-degree battery based on the 
first definition of third-degree battery in 
§ 5-13-203(a), which involved purposely 
causing physical injury, there was no in- 
dication that he requested an instruction 
based on the second definition in the stat- 
ute, which involved recklessness. Defen- 
dant was thus procedurally barred from 
raising an argument based on an element 



of recklessness. Lytle v. State, 2012 Ark. 
App. 246, — S.W.3d — (2012). 

Separate Offenses. 

Trial court did not err in determining 
that consecutive sentencing for aggra- 
vated robbery, § 5-12-103(a)(l), first-de- 
gree terroristic threatening, § 5-13- 
301(a)(1)(A), and second-degree battery, 
under subdivision (a)(2) of this section, did 
not violate the prohibition against double 
jeopardy in Ark. Const. Art. 2, § 8 and the 
Fifth Amendment because neither first- 
degree terroristic threatening nor second- 
degree battery was a lesser-included of- 
fense of aggravated robbery since both 
crimes required proof of additional facts 
not required by aggravated robbery; the 
offense of first-degree terroristic threaten- 
ing requires the elements of threatening 
to cause the death of the victim and the 
purpose of terrorizing the victim, and a 
conviction for second-degree battery re- 
quires proof of purposely causing physical 
injury to the victim. Walker v. State, 2012 
Ark. App. 61, — S.W.3d — (2012). 

Cited: Ross v. State, 2012 Ark. App. 
243, — S.W.3d — (2012). 



5-13-203. Battery in the third degree. 

RESEARCH REFERENCES 



ALR. Parts of Human Body, other than 
Feet, as Deadly or Dangerous Weapons or 
Instrumentalities for Purposes of Statutes 



Aggravating Offenses such as Assault and 
Robbery. 67 A.L.R.6th 103. 



CASE NOTES 



Analysis 

Evidence. 

Lesser Included Offenses. 

Evidence. 

Trial court's finding that defendant vio- 
lated the conditions of his suspended sen- 
tence by committing third-degree battery 
under subdivision (a)(1) of this section was 
not clearly against the preponderance of 
the evidence, because two witnesses testi- 
fied that defendant struck the victim mul- 
tiple times in the face, causing cuts to his 
mouth and significant bleeding. Knotts v. 
State, 2012 Ark. App. 121, — S.W.3d — 
(2012). 



Lesser Included Offenses. 

To the extent that defendant convicted 
of second-degree battery attempted to ar- 
gue that the jury should have been in- 
structed on third-degree battery as a 
lesser-included offense because the jury 
could have rationally found him to have 
recklessly caused the injuries to the vic- 
tim, his argument was not preserved, be- 
cause although he proffered an instruc- 
tion on third-degree battery based on the 
first definition of third-degree battery in 
subsection (a) of this section, which in- 
volved purposely causing physical injury, 
there was no indication that he requested 
an instruction based on the second defini- 
tion in the statute, which involved reck- 



55 



ASSAULT AND BATTERY 



5-13-206 



lessness. Defendant was thus procedur- v. State, 2012 Ark. App. 246, — S.W.3d 
ally barred from raising an argument (2012). 
based on an element of recklessness. Lytle 

5-13-204. Aggravated assault. 

CASE NOTES 



Analysis 

Acts Constituting Assault. 

Evidence. 

Intent. 

Acts Constituting Assault. 

Defendant's conviction for aggravated 
assault was proper because there was 
evidence that defendant's conduct created 
a substantial risk of serious physical in- 
jury, as denned in § 5-1-102(21); defen- 
dant hit the victim with the butt of a pistol 
with sufficient force to knock the victim 
down, breaking facial bones and causing 
the victim's eye to swell shut. Pitts v. 
State, 2012 Ark. App. 228, — S.W.3d — 
(2012). 

Evidence. 

Although the circuit court erred in al- 
lowing the results of defendant's blood- 
alcohol test into evidence since the state 
failed to provide evidence that the blood 
was drawn by a physician or a person 
acting under the direction and supervi- 
sion of a physician as required by this 
section, defendant was properly convicted 
of negligent homicide in violation of § 5- 



10-105 and aggravated assault in viola- 
tion of this section because there was 
overwhelming evidence of defendant's in- 
toxication; while the only evidence regard- 
ing the concentration of alcohol in defen- 
dant's blood came from the blood test, 
there was sufficient evidence at trial to 
support defendant's conviction on the al- 
ternative theory that defendant negli- 
gently caused the victim's death as a re- 
sult of operation of a motor vehicle while 
intoxicated. Bates v. State, 2011 Ark. App. 
446, — S.W.3d — (2011). 

Intent. 

Substantial evidence supported a find- 
ing that defendant had the required pur- 
pose for aggravated assault when he dis- 
charged a gun in the direction of a step 
that was three steps down from where the 
victim was standing. Defendant's expla- 
nation of the gun accidentally firing did 
not match the physical evidence of bullet 
fragments found near a pock mark on the 
first step to the front porch and both the 
victim (an officer who had not identified 
himself) and defendant being wounded. 
Montalvo v. State, 2012 Ark. App. 119, — 
S.W.3d — (2012). 



5-13-206. Assault in the second degree. 

CASE NOTES 



Evidence. 

Where defendant, a police officer, was 
charged with second-degree assault for 
choking an arrestee during the booking 
process, assuming that a special agent of 
the state police was qualified as an expert 
to testify as to the appropriate charging 



decision, the proffered testimony was 
properly excluded as it would have in- 
vaded the role of the jury as to the deter- 
mination of the ultimate issue. Clark v. 
State, 2012 Ark. App. 496, — S.W.3d — 
(2012). 



5-13-211 



CRIMINAL OFFENSES 



56 



5-13-211. Aggravated assault upon a certified law enforcement 
officer or an employee of a correctional facility. 

CASE NOTES 



Defense. 

Motion to dismiss was properly denied 
with respect to aggravated assault on a 
correctional facility employee under sub- 
section (a) of this section and first-degree 
terroristic threatening because voluntary 
intoxication was not a defense. Also, a jury 
could have reasonably concluded that ap- 



pellant purposely caused his saliva to 
come into contact with an officer; the trial 
court found that the act of purposefully 
expelling bodily fluid onto the officer's 
person satisfied the "potential danger" re- 
quirement of the assault offense. Green v. 
State, 2012 Ark. App. 315, — S.W.3d — 
(2012). 



Subchapter 3 — Terrorism 
5-13-301. Terroristic threatening. 

CASE NOTES 



Analysis 

Evidence. 
— Sufficient. 
Jury Instructions. 
Separate Offenses. 

Evidence. 

Evidence was sufficient to convict defen- 
dant of terroristic threatening because a 
dispatcher testified that the dispatcher 
received a 911 call from defendant's wife 
regarding a domestic disturbance; the 
wife said that defendant choked her and 
threatened to kill her and "take her out." 
Mathis v. State, 2012 Ark. App. 285, — 
S.W.3d — (2012). 

Notwithstanding testimony that the al- 
leged victim of terroristic threatening was 
a heavy drinker whose personality and 
memory changed when she was under the 
influence, the jury was entitled to believe 
the victim's testimony that defendant 
threatened to kill her if she reported that 
he had raped her and that she was scared 
to report the crime due to defendant's 
threat, particularly where there was tes- 
timony by another that defendant had 
admitted to having threatened the victim 
that he would kill her if she told anyone 
about the rape. The believability of the 
victim was a function for the jury as the 
fact-finder, not the reviewing court. Har- 
ris v. State, 2012 Ark. App. 651, — S.W.3d 
— , 2012 Ark. App. LEXIS 765 (Nov. 14, 
2012). 



— Sufficient. 

Defendant's convictions for residential 
burglary and terroristic threatening, in 
violation of § 5-39-20 1(a) and subdivision 
(b)(1) of this section were supported by 
sufficient evidence, as he entered his ex- 
wife residence with the intent or purpose 
of assaulting her or of threatening either 
her or her boyfriend. Cash v. State, 2011 
Ark. App. 493, — S.W.3d — (2011). 

Jury Instructions. 

In defendant's trial for rape and terror- 
istic threatening in the first degree in 
violation of subdivision (a)(1)(A) of this 
section, in which the victim testified that 
after defendant raped her for the first 
time, he told her if she said anything 
about the rape he would kill her, the 
evidence did not authorize a jury instruc- 
tion on the offense of terroristic threaten- 
ing in the second degree. Green v. State, 
2012 Ark. 19, — S.W.3d — (2012). 

Separate Offenses. 

Trial court did not err in determining 
that consecutive sentencing for aggra- 
vated robbery, § 5-12-103(a)(l), first-de- 
gree terroristic threatening, under subdi- 
vision (a)(1)(A) of this section, and second- 
degree battery, § 5-13-202(a)(2), did not 
violate the prohibition against double 
jeopardy in Ark. Const. Art. 2, § 8 and the 
Fifth Amendment because neither first- 
degree terroristic threatening nor second- 
degree battery was a lesser-included of- 
fense of aggravated robbery since both 



57 



SEXUAL OFFENSES 



5-14-101 



crimes required proof of additional facts 
not required by aggravated robbery; the 
offense of first-degree terroristic threaten- 
ing requires the elements of threatening 
to cause the death of the victim and the 



purpose of terrorizing the victim, and a 
conviction for second-degree battery re- 
quires proof of purposely causing physical 
injury to the victim. Walker v. State, 2012 
Ark. App. 61, — S.W.3d — (2012). 



5-13-310. Terroristic act. 



CASE NOTES 



Analysis 

Sentencing. 
Sufficiency of Evidence. 

Sentencing. 

Where defendant was convicted of mul- 
tiple offenses and sentenced to 240 
months for committing a terroristic act 
under this section and 192 months for 
domestic battery under § 5-26-303(a)(3), 
the enhancement of his sentence on both 
charges by 144 months pursuant to § 16- 
90-120 did not result in his sentence being 
enhanced twice for using a deadly weapon 
because the use of a firearm was not an 
element the prosecution had to prove to 
obtain his convictions. King v. State, 2012 
Ark. App. 94, — S.W3d — (2012). 

Sufficiency of Evidence. 

Shot fired at the victims' house, the 
intruders' clear intent to rob the victims, 



the earlier threat to kill the victims, and 
the testimony that one of the intruders 
turned around and started shooting while 
he was being chased out of the house was 
sufficient to convict defendant of commit- 
ting terroristic acts under subdivision 
(a)(2) of this section. Davis v. State, 2012 
Ark. App. 362, — S.W3d — (2012). 

Evidence was sufficient to sustain de- 
fendant's conviction for committing a ter- 
roristic act because, after initially shoot- 
ing at the victim, defendant fired his 
weapon two more times as the victim was 
in the process of shutting his door. The 
natural and probable consequences of de- 
fendant's action in continuing to shoot as 
the door was closing resulted in the bul- 
lets striking the trailer, even though de- 
fendant aimed with the purpose of caus- 
ing personal injury. Wells v. State, 2012 
Ark. App. 596, — S.W.3d — 2012 Ark. 
App. LEXIS 718 (Oct. 24, 2012). 



CHAPTER 14 
SEXUAL OFFENSES 

Subchapter 1 — General Provisions 



5-14-101. Definitions. 



CASE NOTES 



Analysis 

Evidence. 

Forcible Compulsion. 
Penetration. 
Physically Helpless. 
Sexual Contact. 
Sexual Gratification. 

Evidence. 

Evidence was sufficient 
fendant's rape conviction 



to sustain de- 
because the 



child testified that defendant put his fin- 
ger inside her body on what she described 
as her "private part," and to prove rape, 
the state was required to show that there 
was penetration, however slight, of the 
labia majora of the victim. McLish v. 
State, 2012 Ark. App. 275, — S.W.3d — 
(2012). 

Substantial evidence supported defen- 
dant's conviction for rape in violation of 
§ 5-14-103(a)(3)(A), because the child vic- 
tim testified that when she was seven 



5-14-101 



CRIMINAL OFFENSES 



58 



years old, defendant forced her onto the 
bed, touched her chest, and sexually pen- 
etrated her vagina under subdivision 
(1)(B) of this section. Therefore, the circuit 
court properly denied his motion for di- 
rected verdict. Fields v. State, 2012 Ark. 
353, — S.W.3d — (2012). 

Victim's testimony relating to her grade 
level and place of residency at the time of 
assaults was sufficient proof for a jury to 
determine when certain assaults occurred 
under subdivision (1)(B) of this section 
and § 5-14-103(a)(3)(A). Mashburn v. 
State, 2012 Ark. App. 621, — S.W.3d — , 
2012 Ark. App. LEXIS 749 (Nov. 7, 2012). 

Forcible Compulsion. 

Because the only rulings adverse to 
defendant were the denials of defendant's 
motions for a directed verdict, and be- 
cause the victim's testimony that defen- 
dant hit, choked, and raped the victim was 
supported by physical evidence, there was 
substantial evidence under subdivision (2) 
of this section and § 5-14-103 to support 
defendant's conviction. Russell v. State, 
2011 Ark. App. 479, — S.W.3d — (2011). 

Penetration. 

Defendant's conviction for raping his 
daughter under § 5-14-103(a)(4)(A)(i) was 
appropriate because the evidence was suf- 
ficient. The minor victim's testimony con- 
stituted substantial evidence that defen- 
dant had raped her and a doctor had 
testified that the daughter's examination 
revealed findings consistent with penetra- 
tion under subdivision (11) of this section. 
Vance v. State, 2011 Ark. 392, — S.W.3d — 
(2011). 

Defendant's confession that he had his 
penis out and touched his five-year-old 
niece's mouth with it, and that she might 
have opened her mouth, coupled with the 
child's statement to her mother within 
seconds or minutes of the incident that 
defendant had put his pee-pee in her 
mouth, was sufficient to convict defendant 
of rape. Davis v. State, 2011 Ark. App. 686, 
— S.W.3d — (2011). 

Motion for a directed verdict as to one 
rape charge against appellant relating to 
penetration by a penis was insufficient to 
challenge the sufficiency of a conviction 
for rape by digital penetration under Ark. 
R. Crim. P. 33.1(c); even if the issue was 
preserved, a victim's testimony was suffi- 
cient and substantial evidence to support 



a conviction. Clayton v. State, 2012 Ark. 
App. 199, — S.W.3d — (2012). 

Victim's oral cavity does not have to be 
fully entered in order for penetration to 
occur under subdivision (1)(A) of this sec- 
tion; rather, slight penetration, such as 
that of the lips, can be sufficient to consti- 
tute rape. Therefore, a directed verdict 
was properly denied because there was 
sufficient evidence of penetration under 
subdivision (1)(A) where the victim testi- 
fied that appellant pushed her head down 
on his penis, which touched her lips; ap- 
pellant was unable to push it further in 
the victim's mouth because she had her 
teeth clenched. Henderson v. State, 2012 
Ark. App. 485, — S.W.3d — (2012). 

Suspended sentence was properly re- 
voked because the evidence showed that 
appellant committed rape under § 5-14- 
103(a)(1); penetration was shown by the 
circumstantial evidence where the victim 
sustained wounds to her body, appellant 
admitted to having intercourse, and de- 
bris was found inside of the victim's va- 
gina. Moreover, appellant's semen was 
found on the victim's inner thigh. Ed- 
wards v. State, 2012 Ark. App. 551, — 
S.W.3d — (2012). 

Physically Helpless. 

Substantial evidence existed to revoke 
defendant's suspended sentence for sale of 
cocaine based on a finding that he commit- 
ted a new criminal offense because his 
sister-in-law testified defendant sexually 
assaulted her after she consumed alcohol 
and fell asleep; therefore, she was physi- 
cally helpless for purposes of subdivision 
(7)(A) of this section. Wilson v. State, 2012 
Ark. App. 566, — S.W.3d — (2012). 

Sexual Contact. 

Evidence was sufficient to convict defen- 
dant of second-degree sexual assault un- 
der § 5-14-125(a)(3) because the child vic- 
tim told a detective about a magic thumb 
game she played with defendant, pointed 
to the genitalia area of an anatomically 
correct doll when describing the magic 
thumb, and said that when it got big, she 
made it little again. King v. State, 2012 
Ark. App. 253, — S.W.3d — (2012). 

Revocation of probation was proper, be- 
cause the appellate court was bound to 
defer to the trial court on issues of cred- 
ibility, and the victim's testimony estab- 
lished each of the elements for committing 



59 



SEXUAL OFFENSES 



5-14-103 



second-degree sexual assault under subdi- 
vision (a)(1) of this section, when she 
indicated that the petitioner had her up 
against the wall and touched her buttocks 
and vagina. Boykins v. State, 2012 Ark. 
App. 263, — S.W.3d — (2012). 

Trial court's delinquency adjudications 
finding that a juvenile committed three 
acts of sexual assault in the second de- 
gree, in violation of § 5-14-125(a)(l), were 
appropriate because the trial court found 
that the testimony of each of the three 
victims as to the juvenile's making sexual 
contact with them, as defined by subsec- 
tion (10) of this section, by inappropriately 
touching the victims in separate incidents 
was credible, and because the uncorrobo- 
rated testimony of each of the victims of a 
sexual offense constituted sufficient evi- 



dence to support a finding of guilt. D.D. v. 
State, 2012 Ark. App. 637, — S.W.3d — , 
2012 Ark. App. LEXIS 747 (Nov. 7, 2012). 

Sexual Gratification. 

Credibility arguments relating to a con- 
viction for second-degree sexual assault 
were not preserved for appellate review 
because appellant presented different ar- 
guments at the trial court level; appellant 
argued that the charge was a lesser-in- 
cluded offense of rape and that the ele- 
ment of sexual gratification was not 
proven. Arguments not raised at trial 
were not addressed for the first time on 
appeal, and appellant was not able to 
change the grounds for his directed ver- 
dict motion on appeal. Clayton v. State, 
2012 Ark. App. 199, — S.W.3d — (2012). 



5-14-102. In general. 



CASE NOTES 



Affirmative Defenses. 

Court rejected petitioner's contention 
that the reasonable mistake of age de- 
fense in subsection (d) of this section vio- 
lated the Due Process Clause by shifting 
the burden of proof on an essential ele- 
ment to the defendant; if the Arkansas 
statute employed a strict-liability stan- 
dard concerning the victim's age, then the 
state retained the burden of proving all 



elements of the offense, and no further 
facts are either presumed or inferred in 
order to constitute the crime (the defen- 
dant's reasonable ignorance of the victim's 
age would therefore mitigate the offense, 
not rebut a presumed element). Neely v. 
McDaniel, 677 F.3d 346 (8th Cir. 2012), 
rehearing denied, — F.3d — , 2012 U.S. 
App. LEXIS 12159 (8th Cir. Ark. June 14, 
2012). 



5-14-103. Rape. 



CASE NOTES 



Analysis 

Directed Verdict. 

Evidence. 

Indictment or Information. 

Lesser Included Offenses. 

Penetration. 

Sentencing. 

Directed Verdict. 

Sufficient evidence supported the denial 
of a directed verdict motion on defendant's 
rape charge, even though: (1) the victim 
had a prior felony conviction and had 
consumed multiple beers and cocaine on 
the night of the incident; (2) the victim 
willingly went to defendant's house and 
did not contact police because of outstand- 



ing warrants for her arrest; (3) there was 
no bruising on the victim; and that no hair 
from defendant was found by the forensic 
serologist; (4) a third person could not be 
excluded from the vaginal swab; and (5) 
intercourse could not be conclusively 
shown between the victim and defendant 
from the swab. Williams v. State, 2011 
Ark. App. 675, — S.W.3d — (2011). 

Evidence. 

Defendant's conviction for raping his 
daughter under subdivision (a)(4)(A)(i) of 
this section was appropriate because the 
evidence was sufficient. The minor vic- 
tim's testimony constituted substantial 
evidence that defendant had raped her 
and a doctor had testified that the daugh- 



5-14-103 



CRIMINAL OFFENSES 



60 



ter's examination revealed findings con- 
sistent with penetration under § 5-14- 
101(11). Vance v. State, 2011 Ark. 392, — 
S.W.3d — (2011). 

Because the only rulings adverse to 
defendant were the denials of defendant's 
motions for a directed verdict, and be- 
cause the victim's testimony that defen- 
dant hit, choked, and raped the victim was 
supported by physical evidence, there was 
substantial evidence under § 5-14-101(2) 
and this section to support defendant's 
conviction. Russell v. State, 2011 Ark. 
App. 479, — S.W.3d — (2011). 

Motion for a directed verdict as to one 
rape charge against appellant relating to 
penetration by a penis was insufficient to 
challenge the sufficiency of a conviction 
for rape by digital penetration under Ark. 
R. Crim. P. 33.1(c); even if the issue was 
preserved, a victim's testimony was suffi- 
cient and substantial evidence to support 
a conviction. Clayton v. State, 2012 Ark. 
App. 199, — S.W.3d — (2012). 

Evidence was sufficient to sustain de- 
fendant's rape conviction because the 
child testified that defendant put his fin- 
ger inside her body on what she described 
as her "private part," and to prove rape, 
the state was required to show that there 
was penetration, however slight, of the 
labia majora of the victim. McLish v. 
State, 2012 Ark. App. 275, — S.W.3d — 
(2012). 

At defendant's trial for rape under this 
section, the circuit court did not abuse its 
discretion in determining that evidence of 
his prior convictions for carnal abuse of a 
child, arson, terroristic threatening, and 
failure to register as a sex offender were 
admissible under Ark. R. Evid. 609 to 
impeach defendant. The prior convictions 
were highly probative of his credibility, 
which was at issue because he chose to 
testify at trial and claimed in defense that 
the victim offered to pay him to have sex 
with her. Jordan v. State, 2012 Ark. 277, 
— S.W.3d — (2012). 

Substantial evidence supported defen T 
dant's conviction for rape under subdivi- 
sion (a)(3)(A) of this section, because the 
child victim testified that when she was 
seven years old, defendant forced her onto 
the bed, touched her chest, and sexually 
penetrated her. Therefore, the circuit 
court properly denied his motion for di- 
rected verdict. Fields v. State, 2012 Ark. 
353, — S.W.3d — (2012). 



At defendant's trial for rape under sub- 
division (a)(3)(A) of this section, the cir- 
cuit court did not abuse its discretion in 
admitting testimony from three witnesses 
who had prior sexual contact with defen- 
dant pursuant to the pedophile exception 
to Ark. R. Evid. 404(b). Like the victim, 
the witnesses were young children at the 
time they had an intimate relationship 
with defendant. Fields v. State, 2012 Ark. 
353, — S.W.3d — (2012). 

In defendant's prosecution for rape of a 
physically helpless victim who was unable 
to consent, defendant's prior conviction of 
lewd molestation of a child was admissible 
under the pedophile exception to Ark. R. 
Evid. 404(b) as probative of defendant's 
motive, intent, and plan to assault the 
victim because, in each case, defendant 
placed himself in a position of authority, 
isolated the victim from parents or other 
adults while engaging the victim in a 
favored activity, removed the victim's 
pants, performed oral sex on the victim, 
and then told the victim not to tell and, in 
both cases, defendant cultivated a rela- 
tionship close in acquaintance based on 
common interests and enjoyed a position 
of authority over the victims. The differ- 
ences in age and gender between the two 
victims did not render the pedophile ex- 
ception inapplicable; nor did the passage 
of 17 years between the events render the 
earlier event too remote to be admissible 
under Rule 404(b) because defendant's 
prior conviction, despite its age, tended to 
prove defendant's depraved sexual in- 
stinct. Craigg v. State, 2012 Ark. 387, — 
S.W.3d — (2012). 

Notwithstanding testimony that the al- 
leged rape victim was a heavy drinker 
whose personality and memory changed 
when she was under the influence, the 
jury was entitled to believe the victim's 
testimony describing an assault and act of 
sexual intercourse by defendant that con- 
tinued after she told him to quit, particu- 
larly where there was testimony by others 
that defendant admitted he had sexual 
intercourse with the victim and admitted 
he had raped her. The believability of the 
victim was a function for the jury as the 
fact-finder, not the reviewing court. Har- 
ris v. State, 2012 Ark. App. 651, — S.W.3d 
— , 2012 Ark. App. LEXIS 765 (Nov. 14, 
2012). 

Victim's testimony relating to her grade 
level and place of residency at the time of 



61 



SEXUAL OFFENSES 



5-14-110 



assaults was sufficient proof for a jury to 
determine when certain assaults occurre- 
dunder subdivision (a)(3)(A) of this section 
and § 5-14-101QXB). Mashburn v. State, 
2012 Ark. App. 621, — S.W.3d — , 2012 
Ark. App. LEXIS 749 (Nov. 7, 2012). 

Indictment or Information. 

Denial of a continuance to a defendant 
did not violate due process; although the 
information was amended the day before 
trial from a charge of rape of someone less 
than 14 years old by forcible compulsion to 
rape by forcible compulsion in violation of 
subdivision (a)(1) of this section, the na- 
ture of the crime charged did not change, 
pursuant to § 16-85-407(b). Green v. 
State, 2012 Ark. 19, — S.W.3d — (2012). 

Lesser Included Offenses. 

In a criminal trial, the circuit court did 
not abuse its discretion in denying defen- 
dant's request to instruct the jury that 
second-degree sexual assault under § 5- 
14- 125(a)(3) was a lesser offense included 
in rape of a person less than fourteen 
years of age, as denned in subdivision 
(a)(3)(A) of this section, because the of- 
fense contained two elements not included 
in rape: defendant's age and marital sta- 
tus. Therefore, second-degree sexual as- 
sault was not a lesser offense included in 
rape. Webb v. State, 2012 Ark. 64, — 
S.W.3d — (2012). 

Penetration. 

Defendant's confession that he had his 
penis out and touched his five-year-old 
niece's mouth with it, and that she might 
have opened her mouth, coupled with the 
child's statement to her mother within 
seconds or minutes of the incident that 
defendant had put his pee-pee in her 



mouth, was sufficient to convict defendant 
of rape. Davis v. State, 2011 Ark. App. 686, 

— S.W.3d — (2011). 

Victim's oral cavity does not have to be 
fully entered in order for penetration to 
occur under § 5-14-101(l)(A); rather, 
slight penetration, such as that of the lips, 
can be sufficient to constitute rape. There- 
fore, a directed verdict was properly de- 
nied because there was sufficient evidence 
of penetration under § 5-14-101(l)(A) 
where the victim testified that appellant 
pushed her head down on his penis, which 
touched her lips; appellant was unable to 
push it further in the victim's mouth be- 
cause she had her teeth clenched. Hender- 
son v. State, 2012 Ark. App. 485, — S.W.3d 

— (2012). 

Suspended sentence was properly re- 
voked because the evidence showed that 
appellant committed rape under subdivi- 
sion (a)(1) of this section; penetration was 
shown by the circumstantial evidence 
where the victim sustained wounds to her 
body, appellant admitted to having inter- 
course, and debris was found inside of the 
victim's vagina. Moreover, appellant's se- 
men was found on the victim's inner 
thigh. Edwards v. State, 2012 Ark. App. 
551, — S.W.3d — (2012). 

Sentencing. 

Where defendant pled guilty to rape 
and elected to be sentenced by a jury in a 
bifurcated proceeding, the trial court 
erred in admitting a videotaped statement 
of the child rape victim during the sen- 
tencing proceeding, because this violated 
defendant's right of confrontation under 
U.S. Const. Amend. VI and Ark. Const. 
Art. II, § 10. Vankirk v. State, 2011 Ark. 
428, — S.W.3d — (2011). 



5-14-110. Sexual indecency with a child. 

CASE NOTES 






Analysis 

Construction. 
Evidence. 

Construction. 

"Solicits" has an ordinary and usually 
accepted meaning in common language 
that can be drawn from dictionaries, and 
men may conduct themselves so as to 



avoid that which is forbidden; the statute 
is not impermissibly vague in all of its 
applications. Neely v. McDaniel, 677 F.3d 
346 (8th Cir. 2012), rehearing denied, — 
F.3d — , 2012 U.S. App. LEXIS 12159 (8th 
Cir. Ark. June 14, 2012). 

By criminalizing the solicitation of mi- 
nors to engage in sexual activity, this 
section targets primarily, if not exclu- 
sively, illicit activity within the state's 



5-14-112 



CRIMINAL OFFENSES 



62 



power to regulate; the court rejected peti- 
tioner's overbreadth challenge and con- 
cluded that whatever overbreadth may 
exist should be cured through case-by- 
case analysis of the fact situations to 
which its sanctions, assertedly, may not be 
applied. Neely v. McDaniel, 677 F.3d 346 
(8th Cir. 2012), rehearing denied, — F.3d 
— , 2012 U.S. App. LEXIS 12159 (8th Cir. 
Ark. June 14, 2012). 

Court rejected petitioner's contention 
that the reasonable mistake of age de- 
fense in § 5- 14- 102(d) violated the Due 
Process Clause by shifting the burden of 
proof on an essential element to the defen- 
dant; if the Arkansas statute employed a 
strict-liability standard concerning the 
victim's age, then the state retained the 
burden of proving all elements of the of- 
fense, and no further facts are either pre- 
sumed or inferred in order to constitute 
the crime (the defendant's reasonable ig- 
norance of the victim's age would there- 
fore mitigate the offense, not rebut a pre- 
sumed element). Neely v. McDaniel, 677 
F.3d 346 (8th Cir. 2012), rehearing denied, 
— F.3d — , 2012 U.S. App. LEXIS 12159 
(8th Cir. Ark. June 14, 2012). 



This section prohibits the solicitation of 
conduct that is already criminal under 
Arkansas law, and offers to engage in 
illegal transactions enjoy no First Amend- 
ment protection. Neely v. McDaniel, 677 
F.3d 346 (8th Cir. 2012), rehearing denied, 
— F.3d — 2012 U.S. App. LEXIS 12159 
(8th Cir. Ark. June 14, 2012). 

Evidence. 

Evidence defendant initiated the first 
episode of sexual intercourse and provided 
transportation to his home and other lo- 
cations so intercourse could take place 
supported a finding defendant solicited 
the victim and supported defendant's con- 
viction for sexual indecency with a child. 
Halliday v. State, 2011 Ark. App. 544, — 
S.W.3d — (2011). 

Because an eight-year-old child victim's 
testimony was enough to support a convic- 
tion, there was sufficient evidence to sup- 
port defendant's convictions for sexual in- 
decency with a child and second-degree 
sexual assault under subdivision (a)(2)(A) 
of this section and § 5-14-125(a)(3), re- 
spectively. Newton v. State, 2012 Ark. 
App. 91, — S.W.3d — (2012). 



5-14-112. Indecent exposure. 

RESEARCH REFERENCES 

ALR. Validity of State and Municipal 
Indecent Exposure Statutes and Ordi- 
nances. 71 A.L.R.6th 283. 

5-14-124. Sexual assault in the first degree. 

CASE NOTES 



Analysis 

Evidence. 
Illustrative Cases. 

Evidence. 

Finding that defendant held a position 
of trust or authority over the victim was 
supported by evidence that defendant 
picked the victim up and took the victim 
home from horse training and by testi- 
mony of the victim's father that defendant 
was helping the victim with riding and 



learning about rodeo and that the father 
trusted defendant as the adult watching 
his daughter. Halliday v. State, 2011 Ark. 
App. 544, — S.W.3d — (2011). 

Illustrative Cases. 

In a case in which defendant was con- 
victed of four counts of sexual assault of a 
minor, defendant fulfilled the role of tem- 
porary caretaker or person in a position of 
trust or authority under both this section 
and § 5-14-125, as defendant was in a 
position to care for the victim while the 



63 



SEXUAL OFFENSES 



5-14-125 



victim was staying overnight in defen- 
dant's home. Nelson v. State, 2011 Ark. 
429, — S.W.3d — (2011). 

5-14-125. Sexual assault in the second degree. 

CASE NOTES 



Analysis 

Constitutionality. 

Applicability. 

Appellate Review. 

Evidence. 

Lesser Included Offense. 

Constitutionality. 

Subdivision (a)(6) of this section, as ap- 
plied to a high school teacher who engaged 
in a consensual sexual relationship with 
an 18-year-old student, who was an adult 
under § 9-25- 10 1(a), infringed on the 
teacher's fundamental right to privacy 
and was not the least restrictive method 
available for the promotion of the state's 
interest; therefore, it was unconstitu- 
tional. Paschal v. State, 2012 Ark. 127, — 
S.W.3d — (2012). 

Applicability. 

In a case in which defendant was con- 
victed of four counts of sexual assault of a 
minor, defendant fulfilled the role of tem- 
porary caretaker or person in a position of 
trust or authority under both § 5-14-124 
and this section, as defendant was in a 
position to care for the victim while the 
victim was staying overnight in defen- 
dant's home. Nelson v. State, 2011 Ark. 
429, — S.W.3d — (2011). 

Appellate Review. 

Credibility arguments relating to a con- 
viction for second-degree sexual assault 
were not preserved for appellate review 
because appellant presented different ar- 
guments at the trial court level; appellant 
argued that the charge was a lesser-in- 
cluded offense of rape and that the ele- 
ment of sexual gratification was not 
proven. Arguments not raised at trial 
were not addressed for the first time on 
appeal, and appellant was not able to 
change the grounds for his directed ver- 
dict motion on appeal. Clayton v. State, 
2012 Ark. App. 199, — S.W.3d — (2012). 



Evidence. 

Because an eight-year-old child victim's 
testimony was enough to support a convic- 
tion, there was sufficient evidence to sup- 
port defendant's convictions for sexual in- 
decency with a child and second-degree 
sexual assault under § 5-14- 110(a)(2)(A) 
and subdivision (a)(3) of this section, re- 
spectively. Newton v. State, 2012 Ark. 
App. 91, — S.W.3d — (2012). 

Evidence was sufficient to convict defen- 
dant of second-degree sexual assault un- 
der subdivision (a)(3) of this section be- 
cause the child victim told a detective 
about a magic thumb game she played 
with defendant, pointed to the genitalia 
area of an anatomically correct doll when 
describing the magic thumb, and said that 
when it got big, she made it little again. 
King v. State, 2012 Ark. App. 253, — 
S.W.3d — (2012). 

Revocation of probation was proper, be- 
cause the appellate court was bound to 
defer to the trial court on issues of cred- 
ibility, and the victim's testimony estab- 
lished each of the elements for committing 
second-degree sexual assault under subdi- 
vision (a)(1) of this section, when she 
indicated that the petitioner had her up 
against the wall and touched her buttocks 
and vagina. Boykins v. State, 2012 Ark. 
App. 263, — S.W.3d — (2012). 

Substantial evidence existed to revoke 
defendant's suspended sentence for sale of 
cocaine based on a finding that he commit- 
ted a new criminal offense under subdivi- 
sion (a)(2)(A) of this section, because his 
sister-in-law testified defendant sexually 
assaulted her while she was asleep and a 
police officer testified his DNA matched 
the sample taken from the victim. Wilson 
v. State, 2012 Ark. App. 566, — S.W.3d — 
(2012). 

Trial court's delinquency adjudications 
finding that a juvenile committed three 
acts of sexual assault in the second de- 
gree, in violation of subdivision (a)(1) of 
this section, were appropriate because the 



5-14-127 



CRIMINAL OFFENSES 



64 



trial court found that the testimony of 
each of the three victims as to the juve- 
nile's making sexual contact with them, as 
denned by § 5-14-101(10), by inappropri- 
ately touching the victims in separate 
incidents was credible, and because the 
uncorroborated testimony of each of the 
victims of a sexual offense constituted 
sufficient evidence to support a finding of 
guilt. D.D. v. State, 2012 Ark. App. 637, — 
S.W.3d — , 2012 Ark. App. LEXIS 747 
(Nov. 7, 2012). 

Lesser Included Offense. 

In a criminal trial, the circuit court did 
not abuse its discretion in denying defen- 



dant's request to instruct the jury that 
second-degree sexual assault under subdi- 
vision (a)(3) of this section was a lesser 
offense included in rape of a person less 
than fourteen years of age, as defined in 
§ 5-14-103(a)(3)(A), because the offense 
contained two elements not included in 
rape: defendant's age and marital status. 
Therefore, second-degree sexual assault 
was not a lesser offense included in rape. 
Webb v. State, 2012 Ark. 64, — S.W.3d — 
(2012). 



5-14-127. Sexual assault in the fourth degree. 

CASE NOTES 



Relationship with Other Laws. 

Section 5-14-110 prohibits the solicita- 
tion of conduct that is already criminal 
under Arkansas law, and offers to engage 
in illegal transactions enjoy no First 



Amendment protection. Neely v. McDan- 
iel, 677 F.3d 346 (8th Cir. 2012), rehearing 
denied, — F.3d — , 2012 U.S. App. LEXIS 
12159 (8th Cir. Ark. June 14, 2012). 



SUBTITLE 3. OFFENSES INVOLVING FAMILIES, 
DEPENDENTS, ETC. 

CHAPTER 26 
OFFENSES INVOLVING THE FAMILY 

Subchapter 3 — Domestic Battering and Assault 

5-26-303. Domestic battering in the first degree. 

CASE NOTES 



Sentencing. 

Where defendant was convicted of mul- 
tiple offenses and sentenced to 240 
months for committing a terroristic act 
under § 5-13-310 and 192 months for do- 
mestic battery under subdivision (a)(3) of 
this section, the enhancement of his sen- 
tence on both charges by 144 months 



pursuant to § 16-90-120 did not result in 
his sentence being enhanced twice for 
using a deadly weapon because the use of 
a firearm was not an element the prosecu- 
tion had to prove to obtain his convictions. 
King v. State, 2012 Ark. App. 94, — S.W.3d 
— (2012). 



65 OFFENSES INVOLVING THE FAMILY 

5-26-304. Domestic battering in the second degree. 

CASE NOTES 



5-26-401 



Sentence. 

Trial court did not err in sentencing 
defendant after revoking his probation 
because defendant pleaded guilty to sec- 
ond-degree domestic battery, under this 
section, and third-degree domestic bat- 



tery, under § 5-26-305, and his sentences 
of ten and six years, respectively, were 
sentences that could have been originally 
imposed for the offenses of which he was 
found guilty Jones v. State, 2012 Ark. 
App. 69, — S.W.3d — (2012). 



5-26-305. Domestic battering in the third degree. 

CASE NOTES 



Sentence. 

Revocation of defendant's suspended 
imposition of sentence for two felony con- 
victions was appropriate because the cir- 
cuit court's finding that she committed 
third-degree domestic battering and thus 
violated the condition that she break no 
laws, was not clearly against the prepon- 
derance of the evidence. The testimony 
was sufficient to prove that, either pur- 
posefully or recklessly, she struck her 
nephew and caused him physical injury in 
the form of substantial pain under subsec- 
tion (a) of this section and § 5-1-102(14). 



Westbrook v. State, 2011 Ark. App. 615, — 
S.W.3d — (2011). 

Trial court did not err in sentencing 
defendant after revoking his probation 
because defendant pleaded guilty to sec- 
ond-degree domestic battery, § 5-26-304, 
and third-degree domestic battery, under 
this section, and his sentences of ten and 
six years, respectively, were sentences 
that could have been originally imposed 
for the offenses of which he was found 
guilty. Jones v. State, 2012 Ark. App. 69, 
— S.W.3d — (2012). 



5-26-306. Aggravated assault on a family or household member. 

CASE NOTES 



Evidence. 

Evidence was sufficient to convict defen- 
dant of aggravated assault on a family or 
household member because a dispatcher 
testified that the dispatcher received a 
911 call from defendant's wife reporting a 



domestic disturbance; a deputy testified 
that the deputy noticed bruising on the 
wife's body and saw broken dishes and 
cabinets knocked off the walls. Mathis v. 
State, 2012 Ark. App. 285, — S.W.3d — 
(2012). 



Subchapter 4 — Nonsupport 



5-26-401. Nonsupport. 



CASE NOTES 



Double Jeopardy. 

Defendant's prior contempt proceedings 
did not present a double-jeopardy bar to 
.the state's prosecution for criminal non- 
support under this section because each 
time defendant failed to pay his child 



support, he offended his ongoing duty to 
provide support; the state was not seeking 
to punish defendant for the acts of non- 
payment for which he had already been 
punished, but rather, the state was at- 
tempting to penalize defendant for a vio- 



5-27-205 CRIMINAL OFFENSES 66 

lation of the statute for which he had not 
yet been punished. Halpaine v. State, 2011 
Ark. 517, — S.W.3d — (2011). 

CHAPTER 27 
OFFENSES AGAINST CHILDREN OR INCOMPETENTS 

Subchapter 2 — Offenses Generally 

5-27-205. Endangering the welfare of a minor in the first degree. 

CASE NOTES 

Illustrative Cases. behind a screen door on the front porch; 

Defendant's conviction for endangering according to the mother's testimony, de- 

the welfare of a minor under this section fendant dragged her by the hair to the car 

was appropriate because the evidence was while she held the infant, and once at the 

sufficient. Defendant fired a shotgun at case) defendant then beat the mother, 

the child's grandmother as the mother of Williams v. State, 2011 Ark. 432, — 

defendant's child and the child stood ap- s.W.3d (2011). 

proximately one foot away from the victim 

5-27-210. Parental responsibility for student's firearm posses- 
sion. 

RESEARCH REFERENCES 

ALR. Validity of Parental Responsibil- ents Liable for Criminal Acts of Their 
ity Statutes and Ordinances Holding Par- Children. 74 A.L.R.6th 181. 

5-27-221. Permitting abuse of a minor. 

CASE NOTES 

Evidence. Defendant's conviction for permitting 

Evidence was sufficient to convict a the abuse of her 23-month-old child by her 

mother of violating this section and § 5- boyfriend, in violation of subsection (a) of 

54-105 based on a shaken baby brain this section, was supported by the evi- 

injury to her two-year-old daughter dence because the medical evidence estab- 

caused by the mother's boyfriend and lished that the child was covered with 

other acts of abuse and neglect; the visible scars and older injuries that would 

mother repeatedly insisted that the brain have been apparent to a care giver; an 

injury resulted in a fall from a bunk bed older child testified to telling defendant of 

despite expert testimony that the injury earlier instances of abuse, and defen- 

could not have resulted from such a fall, dant's only response was to deny the 

Sullivan v. State, 2011 Ark. App. 576, — abuse. Sullivan v. State, 2012 Ark. 74, — 

S.W.3d — (2011). S.W.3d — (2012). 



67 



OFFENSES AGAINST CHILDREN OR INCOMPETENTS 5-27-306 



5-27-227. Providing minors with tobacco products and cigarette 
papers — Purchase, use, or possession prohibited — 
Self-service displays prohibited — Placement of to- 
bacco vending machines. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- for Civil Liability for Tobacco Sales or 
cation of State and Local Laws Providing Distribution to Minors. 66 A.L.R.6th 315. 

Subchapter 3 — Arkansas Protection of Children Against 
Exploitation Act of 1979 

5-27-306. Internet stalking of a child. 

CASE NOTES 



Analysis 

Entrapment As Affirmative Defense. 
Evidence. 

Entrapment As Affirmative Defense. 

Defendant, who was convicted for inter- 
net stalking, should have been permitted 
to plead entrapment under § 5-2-209 as 
an affirmative defense while at the same 
time denying one or two elements of the 
crime, and therefore defendant's convic- 
tion was reversed, because the doctrine 
requiring a defendant to admit to all the 
elements of a crime in order to plead 
entrapment could result in punishing a 
defendant who was merely entrapped; the 
doctrine could possibly punish a defen- 
dant for a serious crime for merely seek- 
ing to require the state to prove its case 
aside from offering an affirmative defense. 
Smoak v. State, 2011 Ark. 529, — S.W.3d 
— (2011). 

Evidence. 

Sufficient evidence showed that defen- 
dant, who was convicted of internet stalk- 
ing under subdivision (a)(2) of this section, 
seduced, enticed, solicited, and lured a 



person whom defendant chatted with on- 
line and believed to be a fifteen year-old 
girl, in an effort to arrange a meeting for 
sex because the transcript of the online 
chat and the testimony of the detective 
who posed as a fifteen year-old girl online 
showed that defendant made sex-related 
comments, asked for the person's address, 
and told the person that defendant had 
condoms, which were found in defendant's 
truck. Smoak v. State, 2011 Ark. 529, — 
S.W.3d — (2011). 

There was sufficient evidence to convict 
defendant of internet stalking of a child in 
violation of this section, because he had a 
series of online chats with a police lieuten- 
ant representing himself as a fifteen-year- 
old female; defendant initiated a sexually 
explicit conversation, made plans to meet 
in person, and offered to teach the fifteen- 
year-old female a variety of sexual skills. 
There was sufficient evidence to prove 
that (1) defendant believed the person 
chatting online was age fifteen or younger; 
and (2) his purpose in meeting in person 
was to engage in sexual activity. Todd v. 
State, 2012 Ark. App. 626, — S.W.3d — , 
2012 Ark. App. LEXIS 778 (Nov. 7, 2012). 



5-27-403 CRIMINAL OFFENSES 68 

Subchapter 4 — Use of Children in Sexual Performances 

5-27-403. Producing, directing, or promoting a sexual perfor- 
mance by a child. 

RESEARCH REFERENCES 

ALR. Construction and Application of Entice, Coerce, or Facilitate the Travel of, 

U.S. Sentencing Guideline § 2G1.3(b)(3), Minor to Engage in Prohibited Sexual 

Providing Two-Level Enhancement for Conduct. 58 A.L.R. Fed. 2d 1. 
Use of Computer to Persuade, Induce, 

Subchapter 6 — Computer Crimes Against Minors 

5-27-605. Computer exploitation of a child. 

RESEARCH REFERENCES 

ALR. Construction and Application of Entice, Coerce, or Facilitate the Travel of, 

U.S. Sentencing Guideline § 2G1. 3(b)(3), Minor to Engage in Prohibited Sexual 

Providing Two-Level Enhancement for Conduct. 58 A.L.R. Fed. 2d 1. 
Use of Computer to Persuade, Induce, 

SUBTITLE 4. OFFENSES AGAINST PROPERTY 

CHAPTER 36 
THEFT 

Subchapter 1 — General Provisions 

5-36-101. Definitions. 

RESEARCH REFERENCES 

ALR. What is "Property of Another" Theft, or Embezzlement of Property of 
Within Statute Proscribing Larceny, Another. 57 A.L.R.6th 445. 

CASE NOTES 

Value. Vault v. State, 2012 Ark. App. 283, — 

Defendant's conviction for theft of prop- S.W.3d — (2012). 
erty under § 5-36- 103(a)(1) was appropri- Defendant's conviction for theft by re- 
ate because the state's proof that the ceiving, a Class D felony, was proper be- 
items he stole had a value in excess of cause the State proved that the stolen 
$500 was adequate, under subdivision trailer's value, as denned in subdivision 
(12)(A)(i) of this section. The items were (12)(A)(i) of this section, was in excess of $ 
mostly purchased less than a year before 1,000; the owner of a trailer dealership 
the burglary, the purchase price so greatly testified that the owner sold the trailer at 
exceeded the $500 statutory value thresh- issue to the victim for $ 1,475 and even 
old, and thus, the victim's testimony con- with the damage to the trailer, it would 
stitutes substantial evidence of value, still be worth over $ 1,000. Johnson v. 



69 



THEFT 



5-36-103 



State, 2012 Ark. App. 615, — S.W.3d — , 
2012 Ark. App. LEXIS 719 (Oct. 31, 2012). 

5-36-103. Theft of property. 

CASE NOTES 



Analysis 

Conspiracy. 

Evidence. 

Intent. 

Reasonable Cause to Arrest. 

Unauthorized Taking. 

Conspiracy. 

Defendant committed an overt act in 
furtherance of a conspiracy to commit 
kidnapping, aggravated robbery, theft of 
property, and aggravated residential bur- 
glary because he took another person to 
his residence and showed the person the 
inside of the premises, discussed how to 
break in the residence and how to subdue 
his wife, and identified the property to be 
taken from the residence. Winkler v. 
State, 2012 Ark. App. 704, — S.W.3d — , 
2012 Ark. App. LEXIS 825 (Dec. 12, 2012). 

Evidence. 

Evidence that defendant violated her 
employer's policy by rummaging in a 
stockroom where the purses she stole 
were kept was properly admitted under 
Ark. R. Evid. 404(b) to demonstrate her 
plan, motive, opportunity, and intent, as 
her prior conduct was relevant to show 
that she knew where the purses were, how 
to get to them, and which ones she 
wanted. Howard v. State, 2011 Ark. App. 
573, — S.W.3d — (2011). 

Evidence that defendant coveted a cer- 
tain brand of designer purse her employer 
sold; that she and a fellow employee were 
videotaped rummaging through a stock- 
room that contained such purses; that 
defendant bought a purse from her em- 
ployer that was placed in an oversized 
shopping bag; that the bag proved to con- 
tained not only the purse that she had 
purchased, but three designer purses as 
well, was sufficient to establish under 
§ 5-36-101 that she knew there were 
purses in the shopping bag that she had 
not paid for. Howard v. State, 2011 Ark. 
App. 573, — S.W.3d — (2011). 

Defendant's conviction for theft of prop- 
erty under subdivision (a)(1) of this sec- 



tion was appropriate because the state's 
proof that the items he stole had a value 
in excess of $500 was adequate, § 5-36- 
101(12)(A)(i). The items were mostly pur- 
chased less than a year before the bur- 
glary, the purchase price so greatly 
exceeded the $500 statutory value thresh- 
old, and thus, the victim's testimony con- 
stitutes substantial evidence of value. 
Vault v. State, 2012 Ark. App. 283, — 
S.W.3d — (2012). 

Where defendant was convicted for resi- 
dential burglary and theft under §§ 5-39- 
201(a)(1) and subdivision (a)(1) of this 
section, the trial court did not err by 
denying his motion for a directed verdict 
because the record showed that the vic- 
tims returned from work to discover that 
their home had been burglarized; the back 
door of the residence had been kicked in 
and $3,000 worth of property was missing. 
As defendant's palm print was found on 
the entertainment table, the jury was not 
required to resort to speculation or conjec- 
ture in reaching its verdicts. Hicks v. 
State, 2012 Ark. App. 667, — S.W3d — 
2012 Ark. App. LEXIS 791 (Nov. 28, 2012). 

Intent. 

Evidence that defendant demanded a 
bank courier's cell phone, bags, and keys 
while armed with a gun was sufficient to 
support defendant's conviction for theft, 
despite his contention that he did not 
retain the items but took them only to 
facilitate his flight, and had no intent to 
permanently deprive the owner of them. 
Ali v. State, 2011 Ark. App. 758, — S.W3d 
— (2011). 

Reasonable Cause to Arrest. 

Denial of motion to suppress was not 
clearly against the preponderance of the 
evidence, because the inventory search of 
defendant's vehicle was proper upon de- 
fendant's lawful arrest, and it was stan- 
dard police policy to inventory the con- 
tents of any vehicle before having it 
towed; at the time of defendant's arrest 
theft of property was a Class C felony if 
the value of the property was less than 



5-36-106 



CRIMINAL OFFENSES 



70 



$2,500 but more than $500, and criminal 
attempt was a Class D felony if the offense 
attempted was a Class C felony. Boykin v. 
State, 2012 Ark. App. 274, — S.W.3d — 
(2012). 

Unauthorized Taking. 

Plaintiff may recover under § 16-118- 
107 where (1) defendants made misrepre- 
sentations to plaintiffs with the intent of 



collecting the commitment fees; and (2) 
accepting the allegations in the Complaint 
as true, defendants received the commit- 
ment fees with the purpose of depriving 
plaintiff of its money. Terra Renewal, LLC 
v. McCarthy, — F. Supp. 2d — , 2012 U.S. 
Dist. LEXIS 94935 (E.D. Ark. July 10, 
2012). 



5-36-106. Theft by receiving. 



CASE NOTES 



Analysis 

Evidence. 

Knowledge and Intent. 

Possession. 

Value. 

Evidence. 

Evidence was sufficient to convict defen- 
dant of theft by receiving under subsec- 
tion (a) of this section because he was 
found underneath a stolen truck, with a 
gas tank sitting nearby; and the victim 
testified that he witnessed defendant 
working on the vehicle before the police 
arrived and that the truck had been 
stripped with the battery and gas tank 
removed. Scales v. State, 2011 Ark. App. 
712, — S.W.3d — (2011). 

Defendant's conviction for theft by re- 
ceiving under subdivision (e)(2) of this 
section was appropriate because his pos- 
session of recently stolen property gave 
rise to the presumption that he knew that 
the ring was stolen. The jury was not 
required to believe his explanation that he 
had found the ring on the ground. Benton 
v. State, 2012 Ark. App. 71, — S.W.3d — 
(2012). 

Defendant's conviction for theft by re- 
ceiving, in violation of subsection (a) of 
this section, was supported by the evi- 
dence because a gas station employee 
identified defendant as the driver of a 
vehicle only hours after it was stolen. 
Turner v. State, 2012 Ark. App. 150, — 
S.W.3d — (2012). 

Trial court did not err in revoking de- 
fendant's suspended sentences in cases 
where he pled guilty to forgery and theft 
by receiving, because the state proved by a 
preponderance of the evidence that he 



committed a new offense of theft by receiv- 
ing under subsection (a) of this section. 
The complainant testified defendant took 
his car for a test drive and did not return 
it; the officer dispatched to the vehicle- 
theft report testified that defendant 
handed him the key to the car; and defen- 
dant's testimony that he took the car to a 
mechanic to have the transmission re- 
paired made no sense. Wallace v. State, 
2012 Ark. App. 571, — S.W.3d — (2012). 

Knowledge and Intent. 

Because there was no evidence regard- 
ing how a gun that was stolen seven or 
eight months earlier came to be in defen- 
dant's possession, the theft was not recent 
enough to give rise to a presumption that 
defendant knew it was stolen; therefore, 
the evidence was insufficient to convict 
defendant of violating subsection (a) of 
this section. Thomas v. Ark., 2011 Ark. 
App. 637, — S.W.3d — (2011). 

Possession. 

Because defendant was unable to ex- 
plain defendant's possession of property 
that had been stolen from a neighbor's 
home the previous day, defendant was 
properly convicted of violating subsection 
(a) of this section; consequently, defen- 
dant's prior suspensions were properly 
revoked. Johnson v. State, 2011 Ark. App. 
718, — S.W.3d — (2011). 

Value. 

Defendant's conviction for theft by re- 
ceiving, in violation of subdivision (e)(3) of 
this section, was proper because the State 
proved that the stolen trailer's value was 
in excess of $ 1,000; the owner of a trailer 
dealership testified that the owner sold 
the trailer at issue to the victim for $ 



71 DAMAGE OR DESTRUCTION OF PROPERTY 5-37-207 

1,475 and even with the damage to the S.W.3d— , 2012 Ark. App. LEXIS 719 (Oct. 
trailer, it would still be worth over $ 1,000. 31, 2012). 
Johnson v. State, 2012 Ark. App. 615, — 

CHAPTER 37 
FORGERY AND FRAUDULENT PRACTICES 

Subchapter 2 — Offenses Generally 

5-37-201. Forgery. 

CASE NOTES 

Analysis Evidence. 

Defendant's conviction for second-de- 

Acts Constituting Forgery. gree forgery under subsection (e) of this 

Evidence. section was proper considering accomplice 

testimony along with the other evidence. 
Acts Constituting Forgery. Although the evidence was circumstantial 
Defendants attempt to pass a victims . ,? A .. ,i r , u 
■ t , i . . ii.jjr given that it was the accomplice, rather 
stolen check at a store completed deien- ?, -, r j ,_ i_ j j.i_ * j 
dant's commission of second-degree forg- ^ defendant, who cashed the forged 
ery, in violation of subdivision (c)(1) of this check circumstantial evidence could pro- 
section; indeed, defendant testified that Vlde the basis to su PP ort the conviction, 
defendant "tried giving the check" to the Benton v - State > 2012 ^^ A PP- 71 > ~ 
cashier. Turner v. State, 2012 Ark. App. S.W.3d — (2012). 
150, — S.W.3d — (2012). 

5-37-207. Fraudulent use of a credit card or debit card. 

RESEARCH REFERENCES 

ALR. Criminal Liability for Unauthor- 
ized Use of Credit Card under State 
Credit Card Statutes. 68 A.L.R.6th 527. 

CHAPTER 38 
DAMAGE OR DESTRUCTION OF PROPERTY 

subchapter. 
2. Offenses Generally. 

Subchapter 2 — Offenses Generally 

SECTION. 

5-38-203. Criminal mischief in the first 
degree. 



5-38-203 CRIMINAL OFFENSES 72 

5-38-203. Criminal mischief in the first degree. 

(a) A person commits the offense of criminal mischief in the first 
degree if he or she purposely and without legal justification destroys or 
causes damage to any: 

(1) Property of another; or 

(2) Property, whether his or her own or property of another, for the 
purpose of collecting any insurance for the property. 

(b) Criminal mischief in the first degree is a: 

(1) Class A misdemeanor if the amount of actual damage is one 
thousand dollars ($1,000) or less; 

(2) Class D felony if the amount of actual damage is more than one 
thousand dollars ($1,000) but five thousand dollars ($5,000) or less; 

(3) Class C felony if the amount of actual damage is more than five 
thousand dollars ($5,000) but less than twenty-five thousand dollars 
($25,000); or 

(4) Class B felony if the amount of actual damage is twenty-five 
thousand dollars ($25,000) or more. 

(c) In an action under this section involving cutting and removing 
timber from the property of another person: 

(1) The following create a presumption of a purpose to commit the 
offense of criminal mischief in the first degree: 

(A) The failure to obtain the survey as required by § 15-32-101; or 

(B) The purposeful misrepresentation of the ownership or origin of 
the timber; and 

(2)(A) There is imposed in addition to a penalty in subsection (b) of 
this section a fine of not more than two (2) times the value of the 
timber destroyed or damaged. 

(B) However, in addition to subdivision (c)(2)(A) of this section, the 
court may require the defendant to make restitution to the owner of 
the timber. 

History. Acts 1975, No. 280, § 1906; Publisher's Notes. This section is be- 

1977, No. 360, § 7; 1981, No. 544, § 2; ing set out to reflect a correction in (b)(1) 

1981, No. 671, § 1; A.S.A. 1947, § 41- in the 2011 supplement. 

1906; Acts 1988 (3rd Ex. Sess.), No. 13, Amendments. The 2011 amendment 

§ 1; 1995, No. 1296, § 5; 1997, No. 448, rewrote (b)(1) and (b)(2); and added (b)(3) 

§ 1; 2005, No. 1994, § 443; 2011, No. 570, and (b)(4 ) 
§ 29. 

CASE NOTES 

Willful Causation. because although there was abundant evi- 

Defendant's conviction for first-degree dence to show that defendant was acting 

criminal mischief under subdivision (a)(1) recklessly, there was nothing to show that 

of this section was not supported by sub- he acted with the purpose of damaging the 

stantial evidence where the charge was j eep . Ross v. State, 2012 Ark. App. 243, — 

premised on the theory that he purposely S.W.3d (2012). 

caused damage to another driver's jeep, 



73 BURGLARY, TRESPASS, AND OTHER INTRUSIONS 5-39-202 

CHAPTER 39 
BURGLARY, TRESPASS, AND OTHER INTRUSIONS 

Subchapter 2 — Offenses Generally 

5-39-201. Residential burglary — Commercial burglary. 

CASE NOTES 



Evidence. 

Defendant's convictions for residential 
burglary and terroristic threatening, in 
violation of subsection (a) of this section 
and § 5- 13-30 1(b)(1) were supported by 
sufficient evidence, as he entered his ex- 
wife residence with the intent or purpose 
of assaulting her or of threatening either 
her or her boyfriend. Cash v. State, 2011 
Ark. App. 493, — S.W.3d — (2011). 

Appellant's convictions for aggravated 
robbery, aggravated residential burglary, 
and misdemeanor fleeing were affirmed 
where a witness testified that appellant 
pointed a sawed-off shotgun at his head, 
which would necessarily constitute proof 
that appellant was "armed with a deadly 
weapon"; the testimony of one eyewitness 
was sufficient to sustain a conviction. Ri- 
ley v. State, 2011 Ark. App. 511, — S.W.3d 
— (2011). 

Where defendant was convicted for resi- 
dential burglary and theft under subdivi- 
sion (a)(1) of this section and § 5-36- 



103(a)(1), the trial court did not err by 
denying his motion for a directed verdict 
because the record showed that the vic- 
tims returned from work to discover that 
their home had been burglarized; the back 
door of the residence had been kicked in 
and $3,000 worth of property was missing. 
As defendant's palm print was found on 
the entertainment table, the jury was not 
required to resort to speculation or conjec- 
ture in reaching its verdicts. Hicks v. 
State, 2012 Ark. App. 667, — S.W.3d — , 

2012 Ark. App. LEXIS 791 (Nov. 28, 2012). 
Evidence was sufficient to sustain the 

revocation of defendant's suspended sen- 
tence because the victim saw where defen- 
dant had broken into his shop, noticed 
that tools and equipment had been gath- 
ered, discovered defendant hiding inside 
the shop, and the victim identified defen- 
dant in a photographic lineup. Upshaw v. 
State, 2013 Ark. App. 41, — S.W.3d — , 

2013 Ark. App. LEXIS 64 (Jan. 30, 2013). 



5-39-202. Breaking or entering. 

CASE NOTES 



Analysis 

Evidence. 
Proof. 

Evidence. 

Trial court did not err in denying defen- 
dant's motion for a directed verdict during 
a trial for breaking or entering, in viola- 
tion of subdivision (a)(1) of this section, 
because there was sufficient evidence to 
support the conviction; an officer observed 
a car with a broken window, and found 
defendant in the vehicle behind the steer- 
ing wheel with a screwdriver in defen- 



dant's hand. Pruitt v. State, 2011 Ark. 
App. 754, — S.W.3d — (2011). 

Proof. 

Evidence was sufficient to convict defen- 
dant of breaking an entering automobiles 
when a victim described defendant and 
his vehicle and the police stopped defen- 
dant's vehicle while it was still within 
sight of the victim, there was no one else 
in the car, and the stolen property de- 
scribed by the victims was in defendant's 
car. Davis v. State, 2011 Ark. App. 561, — 
S.W.3d — (2011). 



5-39-204 CRIMINAL OFFENSES 

5-39-204. Aggravated residential burglary. 

CASE NOTES 



74 



ing hours while the victim was asleep and 
struggled with and stabbed the victim 
supported defendant's conviction for ag- 
gravated residential burglary. Holt v. 
State, 2011 Ark. 391, — S.W.3d — (2011). 
Appellant's convictions for aggravated 
robbery, aggravated residential burglary, 
and misdemeanor fleeing were affirmed 
where a witness testified that appellant 
pointed a sawed-off shotgun at his head, 
which would necessarily constitute proof 
that appellant was "armed with a deadly 
weapon"; the testimony of one eyewitness 
was sufficient to sustain a conviction. Ri- 
ley v. State, 2011 Ark. App. 511, — S.W.3d 
— (2011). 



Analysis 

Conspiracy. 
Sufficient Evidence. 

Conspiracy. 

Defendant committed an overt act in 
furtherance of a conspiracy to commit 
kidnapping, aggravated robbery, theft of 
property, and aggravated residential bur- 
glary because he took another person to 
his residence and showed the person the 
inside of the premises, discussed how to 
break in the residence and how to subdue 
his wife, and identified the property to be 
taken from the residence. Winkler v. 
State, 2012 Ark. App. 704, — S.W.3d — , 
2012 Ark. App. LEXIS 825 (Dec. 12, 2012). 

Sufficient Evidence. 

Evidence that defendant entered the 
victim's locked trailer in the early morn- 



SUBTITLE 5. OFFENSES AGAINST THE 
ADMINISTRATION OF GOVERNMENT 

CHAPTER 53 

OFFENSES RELATING TO JUDICIAL AND OTHER 
OFFICIAL PROCEEDINGS 

Subchapter 1 — General Provisions 



5-53-108. Witness bribery. 



CASE NOTES 



Evidence. 

Student's testimony that, prior to 
sexual assault charges being filed, defen- 
dant teacher approached him and told 
him to tell the victim, also a student, that 
the teacher would give the victim money if 



she would drop the case, was sufficient to 
support the teacher's conviction for wit- 
ness bribery under subdivision (a)(1) of 
this section. Paschal v. State, 2012 Ark. 
127, — S.W.3d — (2012). 



75 OBSTRUCTING GOVERNMENTAL OPERATIONS 

5-53-134. Violation of an order of protection. 

CASE NOTES 



5-54-105 



Probation Revocation. 

In a case where appellant contended 
that an order of protection did not comport 
with the requirements of the law because 
it was issued after a hearing without 
appellant receiving actual notice or an 
opportunity to participate therein, the re- 
vocation of probation based on the com- 
mission of a felony was appropriate be- 
cause appellant violated the protective 
order under this section; by pleading 
guilty, appellant admitted that he knew 
the order existed, an element of the crime, 



and that he knowingly violated it. Appel- 
lant did not seek to appeal the order of 
protection, he did not raise a lack of notice 
before entering his guilty plea, and he did 
not appeal the judgment following the 
plea in that case; moreover, the circuit 
court had jurisdiction over any criminal 
act within its borders, and appellant ad- 
mitted to committing the criminal act of 
violating the protective order. Standridge 
v. State, 2012 Ark. App. 563, — S.W.3d — 
(2012). 



CHAPTER 54 
OBSTRUCTING GOVERNMENTAL OPERATIONS 

Subchapter 1 — General Provisions 

5-54-105. Hindering apprehension or prosecution. 

CASE NOTES 



Analysis 

Evidence. 

Knowledge and Intent. 

Evidence. 

Evidence was sufficient to convict a 
mother of violating § 5-27-221 and this 
section based on a shaken baby brain 
injury to her two-year-old daughter 
caused by the mother's boyfriend and 
other acts of abuse and neglect; the 
mother repeatedly insisted that the brain 
injury resulted in a fall from a bunk bed 
despite expert testimony that the injury 
could not have resulted from such a fall. 
Sullivan v. State, 2011 Ark. App. 576, — 
S.W.3d — (2011). 

Defendant's conviction for hindering 
the apprehension or prosecution of her 



child's abuser, in violation of subdivisions 
(a)(6) or (7) of this section, was supported 
by the evidence because defendant consis- 
tently told medical personnel and the po- 
lice that her 2 3 -month-old child's life- 
threatening brain injury was caused by 
falling from a top bunk bed. Sullivan v. 
State, 2012 Ark. 74, — S.W.3d — (2012). 

Knowledge and Intent. 

Evidence that defendant, the husband 
of a murder victim, met with his step- 
daughter, the murderer, after the murder; 
he denied knowledge of her whereabouts; 
he admitted giving her money and a car to 
go to Mississippi; and he had a sexual 
relationship with her; was sufficient to 
convict him of hindering her apprehension 
under this section. Devor v. State, 2012 
Ark. App. 82, — S.W.3d — (2012). 



5-54-111 CRIMINAL OFFENSES 

5-54-111. Second degree escape. 

CASE NOTES 



76 



Proof. 

Because defendant was not "in custody" 
at the time defendant violated the condi- 
tions of defendant's release on bond under 
§ 16-90-122(a)(2), the circuit court erred 



in denying defendant's motion for directed 
verdict on defendant's conviction for sec- 
ond-degree escape under subdivision 
(a)(2) of this section. Magness v. State, 
2012 Ark. 16, — S.W.3d — (2012). 



5-54-122. Filing false report with law enforcement agency. 

CASE NOTES 



Evidence. 

Evidence was sufficient to support de- 
fendant's conviction for filing a false police 
report because an officer testified that 
defendant abandoned his vehicle during 
an attempted traffic stop, the car was then 



impounded, and several days later, defen- 
dant reported the vehicle stolen. Thus, 
because defendant abandoned the vehicle, 
he knew at the time of his report that it 
had not been stolen. Butler v. State, 2011 
Ark. App. 708, — S.W.3d — (2011). 



5-54-125. Fleeing. 



CASE NOTES 



Analysis 

Evidence. 
Unauthorized Sentence. 

Evidence. 

Evidence was sufficient to sustain de- 
fendant's fleeing conviction because an 
officer testified that he saw a man whom 
he later identified as defendant flee on 
foot after an attempted traffic stop and 
found defendant's identification card and 
cell phone in the abandoned vehicle. But- 



ler v. State, 2011 Ark. App. 708, 
— (2011). 



S.W.3d 



Unauthorized Sentence. 

Court entered an illegal sentence by 
sentencing the petitioner to seventy-two- 
months' imprisonment on a misdemeanor, 
because if property damage occurred as a 
direct result of fleeing on foot, the offense 
was a Class A misdemeanor, and a sen- 
tence for a Class A misdemeanor should 
not exceed one year. Arter v. State, 2012 
Ark. App. 327, — S.W.3d — (2012). 



77 BUSINESS MISCONDUCT 5-63-201 

SUBTITLE 6. OFFENSES AGAINST PUBLIC HEALTH, 
SAFETY, OR WELFARE 

CHAPTER 62 
ANIMALS 

Subchapter 1 — General Provisions 

5-62-103. Offense of cruelty to animals. 

RESEARCH REFERENCES 

ALR. Challenges to Pre- and Post-Con- Restitution Under Animal Cruelty Stat- 
viction Forfeitures and to Postconviction utes. 70 A.L.R.6th 329. 

5-62-106. Disposition of animal. 

RESEARCH REFERENCES 

ALR. Challenges to Pre- and Post-Con- Restitution Under Animal Cruelty Stat- 
viction Forfeitures and to Postconviction utes. 70 A.L.R.6th 329. 

5-62-120. Unlawful animal fighting. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- Validity, Construction, and Application 

cation of Criminal Statutes and Ordi- of Statutes and Ordinances to Prosecution 

nances to Prosecution for Dogfighting. 68 for Cockfighting. 69 A.L.R.6th 207. 
A.L.R.6th 115. 

CHAPTER 63 
BUSINESS MISCONDUCT 

Subchapter 2 — Offenses Generally 

5-63-201. Tickets to school athletic events or music entertain- 
ment events — Sale in excess of regular price. 

CASE NOTES 

In General. exclusive agents of a public facility who 

This section applies to an exclusive sell music entertainment tickets that in- 

agent who sells tickets that include in the elude in the price of the ticket additional 

price of the ticket additional fees, and the fees, resulting in the price of the ticket 

plain and ordinary meaning of "box office" being more than the face value and adver- 

is a booth, as in a theater or stadium, tised price of the ticket, unless those fees 

where tickets are sold. It is applicable to are a reasonable charge for handling or 



5-64-101 



CRIMINAL OFFENSES 



78 



credit card use. McMillan v. Live Nation 
Entm't, Inc., 2012 Ark. 166, — S.W.3d — 
(2012). 

CHAPTER 64 
CONTROLLED SUBSTANCES 

Subchapter 1 — Uniform Controlled Substances Act — Definitions 

5-64-101. Definitions. 

CASE NOTES 



Analysis 

Drug Paraphernalia. 
Manufacture and Production. 

Drug Paraphernalia. 

Sufficient evidence supported a finding 
that defendant possessed "drug parapher- 
nalia" within the meaning of subdivision 
(14)(A) of this section, with the intent to 
manufacture methamphetamine because 
the jury could choose to believe that he 
knew the iodine he possessed was going to 
be used to make methamphetamine. Ash- 



ley v. State, 2012 Ark. App. 131, 
— (2012). 



S.W.3d 



Manufacture and Production. 

Defense counsel was not ineffective for 
not objecting that defendants' convictions 
violated double jeopardy under § 5-1- 
110(b) because possession of drug para- 
phernalia with intent to manufacture 
methamphetamine was not a lesser-in- 
cluded offense of manufacturing metham- 
phetamine, in violation of subsection (m) 
of this section. Myers v. State, 2012 Ark. 
143, — S.W.3d — (2012). 



Subchapter 4 — Uniform Controlled Substances Act — Prohibitions 

and Penalties 



5-64-401. [Repealed.] 



CASE NOTES 



Analysis 

Evidence Sufficient. 
Lesser-Included Offense. 

Evidence Sufficient. 

Trial court did not err in denying defen- 
dant's motion for a directed verdict be- 
cause there was substantial evidence to 
support defendant's conviction for posses- 
sion of cocaine with intent to deliver, in 
violation of subsection (a) of this section; 
defendant had three cellular telephones 
attached to defendant's belt and digital 



scales were found in the glove compart- 
ment of defendant's vehicle. Dishman v. 
State, 2011 Ark. App. 437, — S.W.3d — 
(2011). 

Lesser-Included Offense. 

Defense counsel was not ineffective for 
not objecting that defendants' convictions 
violated double jeopardy because posses- 
sion of methamphetamine with intent to 
deliver was not a lesser-included offense 
of manufacturing methamphetamine. My- 
ers v. State, 2012 Ark. 143, — S.W.3d — 
(2012). 



79 



CONTROLLED SUBSTANCES 



5-64-408 



5-64-402. Controlled substances — Offenses relating to records, 
maintaining premises, etc. 

CASE NOTES 



Evidence. 

Because defendant was present in a 
room adjacent to a kitchen where two men 
were sitting with a clear plastic bag of 
cocaine between them, the evidence was 
sufficient to convict defendant of unlawful 
possession of a controlled substance (co- 
caine) and maintaining a drug premises 
under, inter alia, subdivision (a)(2) of this 
section. McDaniel v. State, 2011 Ark. App. 
677, — S.W.3d — (2011). 



Evidence was sufficient to support a 
conviction for maintaining a drug prem- 
ises because appellant led an informant to 
an apartment for the purchase of drugs, a 
large amount of drugs were seized from 
the apartment five days later, and there 
were three drug-free zones within 1,000 
feet of the apartment. Robelo v. State, 
2012 Ark. App. 425, — S.W.3d — (2012). 



5-64-403. Controlled substances — Fraudulent practices. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- 
cation of State Trademark Counterfeiting 
Statutes. 63 A.L.R.6th 303. 

CASE NOTES 



Analysis 

Evidence. 
Possession. 

Evidence. 

Contact between defendant and an offi- 
cer was the result of an investigation into 
drug-related criminal activity, not a rou- 
tine traffic stop, because the officer 
blocked the vehicle in the driveway, de- 
manded that defendant move to the back 
of the vehicle, informed her that he knew 
there were drugs in the vehicle, and asked 
where they were located. Defendant's pre- 
Miranda statement should have been sup- 
pressed. James v. State, 2012 Ark. App. 
118, — S.W.3d — (2012). 

Sufficient evidence supported a finding 
that defendant had the intent to manufac- 
ture methamphetamine, in violation of 



subdivision (c)(5)(A) of this section, be- 
cause the jury could choose to believe that 
defendant knew the iodine he possessed 
was going to be used to make metham- 
phetamine, despite his argument that he 
bought it for a friend and that no other 
ingredients were found. Ashley v. State, 
2012 Ark. App. 131, — S.W.3d — (2012). 

Possession. 

Evidence that there was a funnel, plas- 
tic tubing, coffee filters, camp fuel, sy- 
ringes, gloves, a metal spoon, a smoking 
device, a bag of ammonia nitrate, and a 
pill crusher in the master bedroom of 
defendant's home, along with a burn bar- 
rel in the back yard, was sufficient to 
support a conviction for possession of 
paraphernalia with intent to manufac- 
ture. Gowen v. State, 2011 Ark. App. 761, 
— S.W.3d — (2011). 



5-64-408. Subsequent convictions — Enhanced penalties. 

CASE NOTES 



Sentencing. 

Appellant filed a petition for writ of 
habeas corpus that challenged the judg- 



ment that imposed an aggregate sentence 
of 1080 months' imprisonment for posses- 
sion of cocaine with intent to deliver and 



5-64-419 



CRIMINAL OFFENSES 



80 



possession of marijuana with intent to 
deliver. The trial court did not err by 
denying appellant's petition, because he 
presented only conclusory allegations to 
support his claim that his sentence was 



improperly enhanced under this section 
using an out-of-state conviction. Darrough 
v. State, 2013 Ark. 28, — S.W.3d — , 2013 
Ark. LEXIS 32 (Jan. 31, 2013). 



5-64-419. Possession of a controlled substance. 

CASE NOTES 



Possession. 

Sufficient evidence was presented to in- 
dicate that defendant knew there was 
contraband in the flatbed trailer he was 
towing, even though it was open to access 
from the general public, because defen- 



dant was the only person in the vehicle 
and more than 200 pounds of marijuana 
were found. Thus, there was sufficient 
evidence that he was in actual possession 
of the drugs. Barrera v. State, 2012 Ark. 
App. 533, — S.W.3d — (2012). 



5-64-420. Possession of methamphetamine or cocaine with the 
purpose to deliver. 

CASE NOTES 



Analysis 

Evidence. 
Sentencing. 

Evidence. 

Contact between defendant and an offi- 
cer was the result of an investigation into 
drug-related criminal activity, not a rou- 
tine traffic stop, because the officer 
blocked the vehicle in the driveway, de- 
manded that defendant move to the back 
of the vehicle, informed her that he knew 
there were drugs in the vehicle, and asked 
where they were located. Defendant's pre- 
Miranda statement should have been sup- 
pressed. James v. State, 2012 Ark. App. 
118, — S.W.3d — (2012). 

Evidence was not sufficient to convict 
defendant of possession with intent to 
deliver cocaine found in a vehicle regis- 
tered to his brother. Although cocaine was 
found on both sides of the vehicle, it was 
sufficiently well hidden that defendant 
would not have been aware of its presence 
simply by riding in or driving the vehicle; 
there was no evidence he had been in or 



around the vehicle before a trip with his 
brother; and the only evidence of nervous- 
ness was that he did not make eye contact 
with the officer. Bustillos v. State, 2012 
Ark. App. 654, — S.W.3d — , 2012 Ark. 
App. LEXIS 775 (Nov. 14, 2012). 

Evidence was sufficient to convict defen- 
dant of possession with intent to deliver 
cocaine found in a vehicle registered to 
him and covered by an insurance policy 
that only lasted 30 days. The cocaine was 
found in a location that would take time 
and effort to access and was hidden in a 
manner that would not have been possible 
for a transient passenger; also, defendant 
appeared nervous during the stop. Bustil- 
los v. State, 2012 Ark. App. 654, — S.W.3d 
— , 2012 Ark. App. LEXIS 775 (Nov. 14, 
2012). 

Sentencing. 

Failure of the State to plead a specific 
amount of cocaine alleged to have been 
possessed did not limit the sentence that 
defendant could receive to the minimum 
allowed under § 5-64-401. Bustillos v. 
State, 2012 Ark. App. 654, — S.W.3d — , 
2012 Ark. App. LEXIS 775 (Nov. 14, 2012). 



81 



DRIVING WHILE INTOXICATED 



5-65-102 



Subchapter 5 — Uniform Controlled Substances Act — Enforcement 

and Administration 



5-64-505. Property subject to forfeiture 
sition of property. 



Procedure — Dispo- 



CASE NOTES 



Analysis 

Close Proximity. 
Conveyances. 

Close Proximity. 

Forfeiture of firearms that were seized 
during a search of defendant's house with 
respect to the manufacture of metham- 
phetamine was proper under this section, 
as the evidence supported the conclusion 
that all of the firearms were "in close 
proximity" to the drug paraphernalia. In 
re Gaucha-Iga 12 Gauge, 2011 Ark. App. 
591, — S.W.3d — (2011). 



Conveyances. 

While a map in defendant's truck did 
not establish that the truck was used to 
transport marijuana in violation of subdi- 
vision (a)(4) of this section, because defen- 
dant's car smelled of raw marijuana and 
28 pounds of marijuana were found in a 
nearby house, the car was properly for- 
feited as a "container" under subdivision 
(a)(4). Trotter v. State, 2011 Ark. App. 696, 
— S.W.3d — (2011). 



CHAPTER 65 
DRIVING WHILE INTOXICATED 

Subchapter 1 — General Provisions 



5-65-102. Definitions. 



CASE NOTES 



Intoxicated. 

Sufficient evidence supported defen- 
dant's conviction for driving while intoxi- 
cated (DWI) under § 5-65- 103(a) where 
the evidence showed that: (1) defendant 
was driving his car erratically, causing 
him to leave the highway; (2) defendant 
was either passed out or unresponsive 
with his foot still on the accelerator and a 
tire spinning; (3) the police had to help 
defendant out of his car, and he was un- 
steady and unable to walk or stand on his 
own; (4) a police officer described defen- 
dant as being in a daze with slurred 
speech; (5) defendant's car smelled of 
marijuana, it contained a partially- 
smoked joint, and defendant told the po- 
lice he had been smoking marijuana as 
well as ingesting large amounts of cold 
medicine; and (6) defendant testified at 
trial that he had been smoking marijuana 



immediately before operating his vehicle 
that evening. From the evidence pre- 
sented, the jury could conclude with rea- 
sonable certainty that defendant's use of 
marijuana influenced him to such a de- 
gree that he presented a clear and sub- 
stantial danger of physical injury to him- 
self and others. Morton v. State, 2011 Ark. 
App. 432, — S.W.3d — (2011). 

Trial court did not err by finding appel- 
lant guilty of driving while intoxicated; a 
positive drug screen, an admission of tak- 
ing drugs that were known by appellant to 
be contraindicated with operating a motor 
vehicle, and observed reckless driving 
were sufficient evidence to support the 
fact-finder's conclusion that appellant was 
intoxicated under this section. Carruth v. 
State, 2012 Ark. App. 305, — S.W.3d — 
(2012). 

Evidence was sufficient to sustain de- 



5-65-103 



CRIMINAL OFFENSES 



82 



fendant's conviction for driving while in- 
toxicated because defendant was seen 
driving erratically, and her urine test 
came back positive for drugs; the positive 
drug screen, admission of taking drugs 
that were known by defendant to be con- 



traindicated with operating a motor ve- 
hicle, and the observed reckless driving 
were sufficient evidence to show defen- 
dant was intoxicated. Carruth v. State, — 
Ark. App. — , — S.W.3d — , 2012 Ark. App. 
LEXIS 432 (May 2, 2012). 



5-65-103. Unlawful acts. 



CASE NOTES 



Analysis 

Authority to Arrest. 
Elements of Offense. 
Evidence. 
Instructions. 
Intoxicated. 
Probable Cause. 
Prohibited Conduct. 
Right to Counsel. 

Authority to Arrest. 

After seeing appellant and smelling in- 
toxicants, an officer had the authority to 
arrest appellant for driving while intoxi- 
cated. Ward v. State, 2012 Ark. App. 649, 
— S.W.3d — , 2012 Ark. App. LEXIS 768 
(Nov. 14, 2012). 

Elements of Offense. 

Defendant admitted that he had drunk 
a six-pack of beer prior to his arrest, and 
the breath-alcohol test results on the In- 
toximeter indicated that defendant was 
over the legal limit of alcohol in that the 
test's final result was .125. In addition to 
the trooper's observations and defendant's 
failing three field sobriety tests, this con- 
stituted substantial evidence of intoxica- 
tion to support defendant's conviction for 
driving while intoxicated, under this sec- 
tion. The state was not obligated to prove 
that defendant was driving erratically or 
posed a danger on the road. Graham v. 
State, 2012 Ark. App. 90, — S.W.3d — 
(2012). 

Evidence. 

A police officer credibly testified that 
there was a noticeable odor of alcohol in 
defendant' car, that defendant was so un- 
steady on her feet that he was afraid to 
conduct field-sobriety tests for fear of her 
falling, and that she told him that she had 
consumed two beers after taking medica- 
tion. Therefore, the evidence was suffi- 
cient to find her guilty of driving while 



intoxicated under subsection (a) of this 
section. Foster v. State, 2012 Ark. App. 
640, — S.W.3d — , 2012 Ark. App. LEXIS 
741 (Nov. 7, 2012). 

There was reasonable cause for defen- 
dant's arrest for DWI under this section, 
because the trooper's observations of de- 
fendant's driving, his demeanor, and the 
odor of alcohol led him to believe that 
defendant was driving under the influence 
of intoxicants and was a danger to himself 
or others. The trooper administered two 
tests to defendant, both of which regis- 
tered a blood-alcohol content of .12 per- 
cent; therefore, there was substantial evi- 
dence to support his DWI conviction. 
Lewis v. State, 2013 Ark. App. 39, — 
S.W.3d — , 2013 Ark. App. LEXIS 53 (Jan. 
30, 2013). 

Instructions. 

Trial court did not err in rejecting a DUI 
defendant's proffered jury instructions be- 
cause the instructions' omission of any 
reference to chemical testing or chemical 
analysis failed to take into account this 
section's incorporation of § 5-65-204, 
which describes "the chemical analysis of 
a person's blood, urine, or breath." The 
model jury instruction represented a more 
accurate reflection of the law, although it 
did not address the 2001 amendment to 
this section, which had eliminated the 
phrase "as determined by a chemical test." 
Graham v. State, 2012 Ark. App. 90, — 
S.W.3d — (2012). 

Intoxicated. 

Sufficient evidence supported defen- 
dant's conviction for driving while intoxi- 
cated (DWI) under subsection (a) of this 
section where the evidence showed that: 

(1) defendant was driving his car errati- 
cally, causing him to leave the highway; 

(2) defendant was either passed out or 
unresponsive with his foot still on the 
accelerator and a tire spinning; (3) the 



83 



DRIVING WHILE INTOXICATED 



5-65-204 



police had to help defendant out of his car, 
and he was unsteady and unable to walk 
or stand on his own; (4) a police officer 
described defendant as being in a daze 
with slurred speech; (5) defendant's car 
smelled of marijuana, it contained a par- 
tially-smoked joint, and defendant told 
the police he had been smoking marijuana 
as well as ingesting large amounts of cold 
medicine; and (6) defendant testified at 
trial that he had been smoking marijuana 
immediately before operating his vehicle 
that evening. From the evidence pre- 
sented, the jury could conclude with rea- 
sonable certainty that defendant's use of 
marijuana influenced him to such a de- 
gree that he presented a clear and sub- 
stantial danger of physical injury to him- 
self and others. Morton v. State, 2011 Ark. 
App. 432, — S.W.3d — (2011). 

Probable Cause. 

Even if the stop started when the officer 
knocked on appellant's window, the officer 
had reasonable suspicion that appellant 
was endangering other officers on the 
street, and the officer had authority to 
require appellant to stop; when the odor of 
alcohol became apparent, the officer had 
reasonable suspicion to ask appellant to 
get out of the vehicle, and as there was 
probable cause to arrest him for driving 
while intoxicated, the trial court did not 
err in denying appellant's motion to sup- 
press. Ward v. State, 2012 Ark. App. 649, 



— S.W.3d — , 2012 Ark. App. LEXIS 768 
(Nov. 14, 2012). 

Prohibited Conduct. 

Trial court believed an officer's testi- 
mony that the encounter was no more 
than the officer trying to direct traffic and 
appellant's vehicle on a congested and 
dark street amidst a crime scene where 
officers' safety was at issue, and while 
protecting the officers was a specific expla- 
nation for knocking on appellant's win- 
dow, the odor of intoxicants and his ap- 
pearance gave the required suspicion for 
an investigation into a potential driving 
while intoxicated offense; under Ark. R. 
Crim. P. 3.1 the officer then had a duty to 
investigate further because it is unlawful 
for any person who is intoxicated to oper- 
ate or be in actual physical contract of a 
motor vehicle. Ward v. State, 2012 Ark. 
App. 649, — S.W3d — , 2012 Ark. App. 
LEXIS 768 (Nov. 14, 2012). 

Right to Counsel. 

Notwithstanding Ark. R. Crim. P. 4.5, 
the Court of Appeals of Arkansas held that 
defendant had no right to consult with 
counsel before taking a breathalyzer test 
following a traffic stop that led to his 
arrest and conviction for driving while 
intoxicated in violation of this section. 
Lewis v. State, 2013 Ark. App. 39, — 
S.W.3d — , 2013 Ark. App. LEXIS 53 (Jan. 
30, 2013). 



Subchapter 2 — Chemical Analysis of Body Substances 
5-65-204. Validity — Approved methods. 

CASE NOTES 



Analysis 

Compliance. 
Jury Instructions. 

Compliance. 

Circuit court erred in allowing the re- 
sults of defendant's blood-alcohol test into 
evidence because the state failed to pro- 
vide evidence that the blood was drawn by 
a physician or a person acting under the 
direction and supervision of a physician as 
required by this section; there was no 
evidence that the medical center employee 
who drew defendant's blood was a regis- 



tered nurse, otherwise qualified to with- 
draw blood, or performing his normal du- 
ties of withdrawing blood from a patient, 
and there was no evidence that the em- 
ployee was acting under the supervision 
or direction of a physician at the time 
defendant's blood was drawn. Bates v. 
State, 2011 Ark. App. 446, — S.W.3d — 
(2011). 

Jury Instructions. 

Trial court did not err in rejecting a DUI 
defendant's proffered jury instructions be- 
cause the instructions' omission of any 
reference to chemical testing or chemical 



5-65-206 



CRIMINAL OFFENSES 



84 



analysis failed to take into account § 5- 
65-103' s incorporation of this section, 
which describes "the chemical analysis of 
a person's blood, urine, or breath." The 
model jury instruction represented a more 
accurate reflection of the law, although it 



did not address the 2001 amendment to 
§ 5-65-103, which had eliminated the 
phrase "as determined by a chemical test." 
Graham v. State, 2012 Ark. App. 90, — 
S.W.3d — (2012). 



5-65-206. Evidence in prosecution. 

CASE NOTES 



Analysis 

Certificate. 
Cross-Examination of Operator. 

Certificate. 

At defendant's trial for driving while 
intoxicated, the trial court did not err in 
admitting certificates under subdivision 
(d)(1)(A) of this section showing an officer 
was certified to administer BAC test and 
that the machine used to administer the 
test had been calibrated because the docu- 
ments were not testimonial in nature and 
did not trigger the application of the Sixth 
Amendment Confrontation Clause. 
Chambers v. State, 2012 Ark. App. 383, — 
S.W.3d — (2012). 

Cross-Examination of Operator. 

It was not a violation of subdivision 
(d)(1) of this section to admit certificates of 
the calibration of a breathalyzer machine 
and of the qualifications of the machine's 



operator, without the testimony of the 
authors of those certificates, because the 
statute had been amended to remove a 
prior requirement that the State provide 
such witnesses upon receiving notice from 
a defendant. Chambers v. State, 2012 Ark. 
407, — S.W.3d — , 2012 Ark. LEXIS 425 
(Nov. 1, 2012). 

In defendant's trial for driving while 
intoxicated, it was not improper to place 
the burden on defendant, under subdivi- 
sion (d)(4) of this section, to subpoena the 
authors of certificates that the breatha- 
lyzer machine used in defendant's case 
had been properly calibrated and that the 
operator of the machine was qualified, if 
defendant wished to cross-examine the 
authors, because the certificates were not 
testimonial evidence, so the State had no 
duty to bring the authors into court. 
Chambers v. State, 2012 Ark. 407, — 
S.W.3d — , 2012 Ark. LEXIS 425 (Nov. 1, 
2012). 



Subchapter 3 — Underage Driving Under the Influence Law 

5-65-303. Conduct proscribed. 

CASE NOTES 



Search and Seizure. 

When defendant was arrested for suspi- 
cion of underage driving under the influ- 
ence in violation of subsection (b) of this 
section, the deputy's actions in transport- 
ing defendant to a nearby county outside 
his jurisdiction to administer a breatha- 
lyzer test were lawful under the Fourth 



Amendment because the test had to be 
given without delay due to the exigent 
circumstance of defendant's falling blood 
alcohol content and in accordance with 
Health Department regulations. Picker- 
ing v. State, 2012 Ark. 280, — S.W.3d — 
(2012). 



85 DRIVING WHILE INTOXICATED 

5-65-309. Implied consent. 

CASE NOTES 



5-65-403 



Breath Test. 

When defendant was arrested for suspi- 
cion of underage driving under the influ- 
ence in violation of § 5-65-303(b), the 
deputy's actions in transporting defen- 
dant to a nearby county outside his juris- 
diction to administer a breathalyzer test 
were lawful under the Fourth Amendment 



because the test had to be given without 
delay due to the exigent circumstance of 
defendant's falling blood alcohol content 
and in accordance with Health Depart- 
ment regulations. Defendant consented to 
the test for purposes of subdivision (a)(1) 
of this section. Pickering v. State, 2012 
Ark. 280, — S.W3d — (2012). 



Subchapter 4 — Administrative Driver's License Suspension 
5-65-402. Surrender of license or permit to arresting officer. 

CASE NOTES 



Analysis 

Constitutionality. 
Sufficiency of Notice. 

Constitutionality. 

This section was not unconstitutional as 
applied to the driver where the hearing 
officer testified she considered the letter 
from the driver's doctor and the driver's 
final de novo hearing was held seventy 
days after the stay was granted by the 
circuit court, well within the 120 day limit 
imposed under subdivision (c)(2)(C)(i) of 
this section. Miller v. Ark. Dep't of Fin. & 



Admin. 
(2012). 



2012 Ark. 165, — S.W.3d — 



Sufficiency of Notice. 

Notice given to a DWI defendant that he 
was required to request a hearing on his 
license suspension within seven days was 
sufficient, although this section and § 5- 
65-403 specified that the hearing be re- 
quested within seven calendar days, be- 
cause defendant filed his request timely 
and was given an opportunity to be heard. 
Robinette v. Dep't of Fin. & Admin., 2011 
Ark. 349, — S.W.3d — (2011). 



5-65-403. Notice and receipt from arresting officer. 

CASE NOTES 



Sufficiency of Notice. 

Notice given to a DWI defendant that he 
was required to request a hearing on his 
license suspension within seven days was 
sufficient, although § 5-65-402 and this 
section specified that the hearing be re- 



quested within seven calendar days, be- 
cause defendant filed his request timely 
and was given an opportunity to be heard. 
Robinette v. Dep't of Fin. & Admin., 2011 
Ark. 349, — S.W.3d — (2011). 



5-71-208 CRIMINAL OFFENSES 86 

CHAPTER 71 
RIOTS, DISORDERLY CONDUCT, ETC. 

Subchapter 2 — Offenses Generally 

5-71-208. Harassment. 

CASE NOTES 

Cited: Lemmond v. State, 2012 Ark. 
App. 390, — S.W.3d — (2012). 

CHAPTER 73 
WEAPONS 

Subchapter 1 — Possession and Use Generally 

5-73-102. Possessing instrument of crime. 

RESEARCH REFERENCES 

ALR. Construction and Application of 177 L. Ed. 2d 894, 2010 U.S. LEXIS 5523 

United States Supreme Court Holdings in (2010) Respecting Second Amendment 

District of Columbia v. Heller, 554 U.S. Right to Keep and Bear Arms, to State or 

570, 128 S. Ct. 2783, 171 L. Ed. 2d 637, Local Laws Regulating Firearms or Other 

2008 U.S. LEXIS 5268 (2008) and McDon- Weapons. 64 A.L.R.6th 131. 
aid v. City of Chicago, III., 130 S. Ct. 3020, 

5-73-103. Possession of firearms by certain persons. 

RESEARCH REFERENCES 

ALR. Construction and Application of 177 L. Ed. 2d 894, 2010 U.S. LEXIS 5523 

United States Supreme Court Holdings in (2010) Respecting Second Amendment 

District of Columbia v. Heller, 554 U.S. Right to Keep and Bear Arms, to State or 

570, 128 S. Ct. 2783, 171 L. Ed. 2d 637, Local Laws Regulating Firearms or Other 

2008 U.S. LEXIS 5268 (2008) and McDon- Weapons. 64 A.L.R.6th 131. 
aid v. City of Chicago, III., 130 S. Ct. 3020, 

CASE NOTES 

Analysis subsection (a) of this section, as a firearm 

was observed in plain view next to defen- 
Evidence. dant in a truck that he was riding in; the 

Expungement of Prior Felony. evidence showed that defendant was in 

Sentencing constructive possession, if not actual pos- 

session, of the weapon. Hancock v. State, 
Evidence. 2012 Ark. App. 338, — S.W.3d — (2012). 

Evidence was sufficient to support de- Defendant's conviction for possession of 
fendant's conviction for possession of a a firearm by a convicted felon under sub- 
firearm by certain persons, in violation of section (a) of this section was sufficiently 



87 



WEAPONS 



5-73-125 



supported by evidence from a friend that 
he had seen defendant shoot the rifle 
although the rifle belonged to defendant's 
father and it was at his friend's house for 
shooting a raccoon. Fraser v. State, 2012 
Ark. App. 598, — S.W.3d — , 2012 Ark. 
App. LEXIS 699 (Oct. 24, 2012). 

Defendant's conviction for possession of 
a firearm by a felon, in violation of subdi- 
vision (a)(1) of this section, was supported 
by the evidence because defendant lived 
alone in a cabin for a week in which there 
was a gun in plain sight right in front of 
the door; although defendant denied being 
aware of the gun, the jury was not re- 
quired to believe defendant's testimony. 
Magness v. State, 2012 Ark. App. 609, — 
S.W.3d— , 2012 Ark. App. LEXIS 721 (Oct. 
31, 2012). 

Expungement of Prior Felony. 

Trial court did not err by admitting 
defendant's prior conviction for felony pos- 
session of drug paraphernalia into evi- 
dence as proof on a charge of possession of 
a firearm by a felon (FIP) because subdi- 
vision (a)(1) of this section specifically 
provided that defendant's expunged 
felony conviction could be used as proof on 
his FIP charge; although still uncodified, 
1995 Ark. Acts. 595, § 1 indicates legisla- 
tive intent for an expunged felony convic- 
tion to remain a conviction for the pur- 



poses of possession of a firearm by a felon. 
Smith v. State, 2011 Ark. App. 539, — 
S.W.3d — (2011). 

Sentencing. 

State v. Lawson, 295 Ark. 37, 746 
S.W.2d 544, 1988 Ark. LEXIS 84 (1988), 
prohibits "stacking" of specific subse- 
quent-offense penalty enhancements like 
the one in the driving while impaired 
statute, which operates to convert a mis- 
demeanor to a felony because of multiple 
recurrences of the same underlying of- 
fense within a specified period of time; the 
Court of Appeals of Arkansas, Division 
One, declines to expand Lawson past that 
boundary. Therefore, there was no imper- 
missible stacking of a specific firearm en- 
hancement statute for a felon in posses- 
sion of a firearm under subdivision (c)(1) 
of this section with the general habitual- 
offender enhancement statute under § 5- 
4-401(b)(2)(C); subdivision (c)(1) did not 
contain an enhancement for recidivism, 
there was no greater sentence than if 
either statute was applied singly, and the 
designation of the possession offense as a 
Class B felony was not an enhancement. 
Moore v. State, 2012 Ark. App. 662, — 
S.W.3d — , 2012 Ark. App. LEXIS 764 
(Nov. 14, 2012). 

Cited: Butler v. State, 2011 Ark. App. 
708, — S.W.3d — (2011). 



5-73-125. Interstate sale and purchase of shotguns, rifles, and 
ammunition. 

RESEARCH REFERENCES 



ALR. Preemption of State Regulation of 
Weapons and Other Laws by Federal Gun 
Control Act. 65 A.L.R.6th 329. 



5-74-101 CRIMINAL OFFENSES 88 

CHAPTER 74 
GANGS 

Subchapter 1 — Arkansas Criminal Gang, Organization, or 

Enterprise Act 

5-74-101. Title. 

RESEARCH REFERENCES 

ALR. Validity of Criminal State Rack- Gang Activity and the Like. 58 A.L.R.6th 
eteer Influenced and Corrupt Organiza- 385. 
tions Acts and Similar Acts Related to 

5-74-104. Engaging in a continuing criminal gang, organization, 
or enterprise. 

RESEARCH REFERENCES 

ALR. Validity of Criminal State Rack- Gang Activity and the Like. 58 A.L.R.6th 
eteer Influenced and Corrupt Organiza- 385. 
tions Acts and Similar Acts Related to 

5-74-106. Simultaneous possession of drugs and firearms. 

CASE NOTES 

Evidence. neous possession of drugs and firearms, 

Evidence was sufficient to convict defen- because the jury could reasonably con- 

dant of simultaneous possession of drugs elude that defendant had knowledge of the 

and firearms under subdivision (a)(1) of cocaine and exercised care, control, and 

this section and defendant could not avail management of the cocaine, and defen- 

himself of the defense in subsection (d) as dant constructively possessed the cocaine 

he possessed methamphetamine and a and he did so while in possession of a 

gun was accessible for use because it was firearm; the cocaine was found at a loca- 

in plain sight on a night stand with an tion that wag leveJ with the driver , g ^ 

ammunition clip nearby and the gun could and defendant was in close proximity to 

have easily been loaded. Arroyo v. State, ., , , ,, u j ^ \ i 

2011 Ark. App. 523, - S.W.3d - (2011). **.*"£' ***. ?" handgun was located 

Evidence was sufficient to convict defen- ^ A o^ % w^ ^omof ' 

dant of possession of cocaine and simulta- ***• A PP' 274 ' ~ SW3d ~ (2012) ' 

5-74-108. Engaging in violent criminal group activity. 

RESEARCH REFERENCES 

ALR. Validity of Criminal State Rack- Gang Activity and the Like. 58 A.L.R.6th 
eteer Influenced and Corrupt Organiza- 385. 
tions Acts and Similar Acts Related to 



89 SCHOOL DISTRICTS 6-13-631 

TITLE 6 
EDUCATION 

SUBTITLE 2. ELEMENTARY AND SECONDARY EDUCATION GENERALLY 

CHAPTER. 

17. PERSONNEL. 

18. STUDENTS. 

SUBTITLE 2. ELEMENTARY AND SECONDARY 
EDUCATION GENERALLY 

CHAPTER 11 
EDUCATION 

Subchapter 1 — State Board of Education 

6-11-102. Commissioner of Education. 

A.C.R.C. Notes. Acts 2012, No. 246, any additional salary from any other 

§ 23, provided: "SALARY OF THE COM- source (including state, federal, or private 

MISSIONER OF THE DEPARTMENT entities or persons) for the performance of 

OF EDUCATION. It is the intent of the his or her duties as Commissioner, and is 

General Assembly that the appropriation prohibited from accepting any salary, fees 

for the salary of the Commissioner of the or compensation from any other source 

Department of Education shall be the sole (including state, federal or private entities 

and exclusive authority for his or her or persons) for any other employment of 

salary. It is further the intent of the Gen- any kind outside the scope of his or her 

eral Assembly that the Commissioner be duties as Commissioner, including but not 

required to devote all of his or her working limited to consulting work for any other 

time exclusively to the performance of his public or private entity. This section shall 

or her duties as Commissioner of the De- not be construed to prohibit the Commis- 

partment of Education. Therefore, the sioner from accepting or receiving expense 

Commissioner of the Department of Edu- reimbursements and employee benefits as 

cation is hereby prohibited from accepting provided by State law." 

CHAPTER 13 
SCHOOL DISTRICTS 

Subchapter 6 — School District Boards of Directors Generally 

6-13-631. Effect of minority population on election. 

CASE NOTES 

Rezoning of Boundaries. lation of this section, were not entitled to 

Voters who prevailed on a claim against prevailing party attorney's fees because 

a school district for failing to adopt new the trial court clearly awarded relief 

district lines following the census, in vio- solely under this section, which did not 



6-15-1001 EDUCATION 90 

provide for attorney's fees. Fluker v. Hel- 
ena, 2012 Ark. 327, — S.W.3d — (2012). 

CHAPTER 15 

EDUCATIONAL STANDARDS AND QUALITY 
GENERALLY 

Subchapter 10 — Arkansas Public Education Act 

6-15-1001. Title. 

CASE NOTES 

In General. §§ 6-15-1001 to 1007. Young v. Blytheville 

Arkansas Legislature did not intend to Sch. Dist., 2013 Ark. App. 50, — S.W.3d 

partially repeal § 21-9-301 when it en- — , 2013 Ark. App. LEXIS 68 (Jan. 30, 

acted the Arkansas Public Education Act, 2013). 

6-15-1002. Legislative findings. 

CASE NOTES 

Private Right of Action. over a student's rape based on alleged 

Arkansas Public Education Act, §§ 6- failures under this section or § 6-15-1005. 

15-1001 to 1007, does not expressly pro- Young v. Blytheville Sch. Dist., 2013 Ark. 

vide for a private right of action or for any App. 50, — S.W.3d — , 2013 Ark. App. 

kind of remedy; therefore, a school district LEXIS 68 (Jan. 30, 2013). 
and a bus driver could not have been sued 

6-15-1005. Safe, equitable, and accountable public schools. 

CASE NOTES 

Private Right of Action. over a student's rape based on alleged 

Arkansas Public Education Act, §§ 6- failures under § 6-15-1002 or this section. 

15-1001 to 1007, does not expressly pro- Young v. Blytheville Sch. Dist., 2013 Ark. 

vide for a private right of action or for any App. 50, — S.W.3d — , 2013 Ark. App. 

kind of remedy; therefore, a school district LEXIS 68 (Jan. 30, 2013). 
and a bus driver could not have been sued 

CHAPTER 17 
PERSONNEL 

subchapter. 
3. Employment and Assignment. 
9. The Arkansas Teachers' Salary Law. 

Subchapter 3 — Employment and Assignment 

section. 

6-17-309. Licensure — Waiver. 



91 PERSONNEL 6-17-309 

6-17-309. Licensure — Waiver. 

(a)(1) No class of students shall be under the instruction of a teacher 
who is not licensed to teach the grade level or subject matter of the class 
for more than thirty (30) consecutive school days in the same class 
during a school year. 

(2) This provision shall not apply to: 

(A) Nondegreed vocational- technical teachers; 

(B) Those persons approved by the Department of Education to 
teach the grade level or subject matter of the class in the Department 
of Education's distance learning program; 

(C) Those persons teaching concurrent credit courses or advanced 
placement courses who: 

(i) Are employed by a postsecondary institution; 

(ii) Meet the qualification requirements of that institution or the 
Department of Workforce Education; and 

(iii) Are teaching in a course in which credit is offered by an 
institution of higher education or a technical institute; 

(D) Licensed teachers teaching in the following settings: 
(i) An alternative learning environment; 

(ii) A juvenile detention facility; 

(iii) A residential and day alcohol, drug, and psychiatric facility 
program; 

(iv) An emergency youth shelter; 

(v) A facility of the Division of Youth Services of the Department of 
Human Services; or 

(vi) A facility of the Division of Developmental Disabilities Ser- 
vices of the Department of Human Services; and 

(E) A licensed special education teacher teaching two (2) or more 
core academic subjects exclusively to children with disabilities. 
(b)(1) If this requirement imposes an undue hardship on a school 

district, the school district may apply to the State Board of Education 
for a waiver. 

(2) The state board shall develop rules and regulations for granting 
a waiver. 

(3) Any school district that obtains a waiver shall send written notice 
of the assignment to the parent or guardian of each student in the 
classroom no later than the thirtieth school day after the date of the 
assignment. 

(4) The state board may waive or modify the requirement that an 
applicant seeking licensure as a special education teacher complete an 
additional performance-based program of study if the applicant: 

(A) Is licensed in another state with a special education license or 
endorsement; and 

(B) Has taught special education students for not less than five (5) 
years. 



6-17-809 EDUCATION 92 

History. Acts 2001, No. 1623, § 1; Publisher's Notes. This section is be- 
2005, No. 2151, § 16; 2007, No. 1007, § 1; ing set out to reflect a correction in the 
2007, No. 1573, § 22. bound volume. 

Subchapter 8 — Teachers' Salaries Generally 

6-17-809. Teachers for the visually impaired entering state ser- 
vice. 

A.C.R.C. Notes. Acts 2012, No. 180, for the sensory impaired may be adjusted 

§ 13, provided: "CERTIFIED MASTERS to a rate of pay closest to but not less than 

OR BACHELOR TEACHERS ENTER- the annual salary they would have re- 

ING STATE SERVICE. Upon the superin- ceived from their previous employer, effec- 

tendent's certification to the State Person- tive upon employment at ASB. 
nel Administrator of prior service at an "The provisions of this section shall be 

educational institution, the salary of in effect only from July 1, 2012 through 

teachers entering state service as teachers June 30, 2013." 

6-17-810. Teachers for the hearing impaired entering state ser- 
vice. 

A.C.R.C. Notes. Acts 2012, No. 170, may be adjusted to a rate of pay closest to 

§ 10, provided: "CERTIFIED MASTERS but not less than the annual salary they 

OR BACHELOR TEACHERS ENTER- would have received from their previous 

ING STATE SERVICE. Upon the superin- employer, effective upon employment at 

tendent's certification to the State Person- ASD. 

nel Administrator of prior service at an "The provisions of this section shall be 

educational institution, the salary of in effect only from July 1, 2012 through 

teachers entering state service as teachers June 30, 2013." 

Subchapter 9 — The Arkansas Teachers' Salary Law 

SECTION. 

6-17-919. Warrants void without valid li- 
cense and contract. 

6-17-919. Warrants void without valid license and contract. 

(a) All warrants issued in payment of teachers' salaries are void 
unless: 

(1)(A) The teacher is licensed to teach in the State of Arkansas by a 
license issued by the State Board of Education; or 

(B) The public school district employing the teacher has other 
documentation from the Office of Professional Licensure of the 
Department of Education authorizing employment of the teacher 
under the conditions set forth by the department in the documenta- 
tion; 

(2) The teacher has been employed by a valid written contract; and 

(3) Copies of such contract are on file in the office of the county 
treasurer or the school district treasurer if the school district has its 
own treasurer. 

(b) The school district superintendent and the superintendent's 
surety shall be liable for any warrants that he or she countersigns in 






93 



PERSONNEL 



6-17-1503 



payment of teachers' salaries unless and until the state board has 
issued a valid license or the department has provided the documenta- 
tion required by subdivision (a)(1)(B) of this section. 

(c) The county treasurer, or the school district treasurer if the school 
district has its own treasurer, and his or her surety shall be liable for all 
warrants in payment of teachers' salaries that he or she pays unless 
and until there is a valid contract on file in his or her office. 



History. Acts 1941, No. 319, § 4; 1959, 
No. 455, § 1; 1961, No. 63, § 1; 1973, No. 
496, § 2; 1983, No. 402, § 1; A.S.A. 1947, 
§ 80-1304; Acts 1993, No. 294, § 11; 1995, 
No. 233, § 8; 1995, No. 1296, § 20; 1999, 
No. 1078, § 69; 2007, No. 710, § 4. 



Publisher's Notes. This section is be- 
ing set out to reflect a correction in the 
bound volume. 



Subchapter 11 — Insurance 



6-17-1117. Health insurance. 



A.C.R.C. Notes. Acts 2012, No. 269, 
§ 25, provided: "PUBLIC SCHOOL RE- 
TIREE HEALTH INSURANCE. The Em- 
ployee Benefits Division of the Depart- 
ment of Finance and Administration may 
use up to eleven dollars and twenty cents 
($11.20) from each contribution made un- 
der Arkansas Code §6-17-1117 (a) to offset 
the cost of health insurance premiums to 
eligible members electing to participate in 
the public school employees' health insur- 
ance program as a retiree." 

Acts 2012, No. 269, § 27, provided: 
"HEALTH INSURANCE. The appropria- 



tion contained herein for Public School 
Employee Insurance each fiscal year shall 
be used to provide the state contribution 
for insurance premiums for employees of 
the Cooperative Education Services Ar- 
eas, Vocational Centers, and the school 
operated by the Department of Correction 
who participate in the Arkansas Public 
School Life and Health Insurance Pro- 
gram. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 15 — Teacher Fair Dismissal Act 



6-17-1501. Title. 



CASE NOTES 



Just Termination. 

Teacher failed to demonstrate that her 
termination was unlawful and without 
just and reasonable cause under the 
Teacher Fair Dismissal Act of 1983, §§ 6- 
17-1501 to 6-17-1510, where the teacher 



used book club bonus points for her own 
personal gain, made disrespectful re- 
marks in the school building during school 
hours, and was untruthful about the inci- 
dent. Timpani v. Lakeside Sch. Dist., 2011 
Ark. App. 668, — S.W.3d — (2011). 



6-17-1503. Construction. 



CASE NOTES 



Termination and Nonrenewal. 

Circuit court correctly upheld a school 
district's decision to not to renew a teach- 



er's contract because the district did not 
fail to substantially comply with its per- 
sonnel policies under the subsection (c) of 



6-17-1504 



EDUCATION 



94 



this section, the Arkansas Teacher Fair 
Dismissal Act; the district's policies re- 
quired an evaluation of the needs and 
goals of the district, and the teacher was 
not needed to teach in the licensure area 
of social studies. Kasinger v. East End 
Sch. Dist., 2011 Ark. App. 595, — S.W.3d 
— (2011). 

Teacher failed to demonstrate that her 
termination was unlawful and without 
just and reasonable cause under the 
Teacher Fair Dismissal Act of 1983, §§ 6- 
17-1501 to 6-17-1510, where the teacher 
used book club bonus points for her own 
personal gain, made disrespectful re- 
marks in the school building during school 



hours, and was untruthful about the inci- 
dent. Timpani v. Lakeside Sch. Dist., 2011 
Ark. App. 668, — S.W.3d — (2011). 

Nonrenewal of a counselor's employ- 
ment contract violated the Arkansas 
Teacher Fair Dismissal Act of 1983, § 6- 
17-1501 et seq., because it was unreason- 
able to hold the counselor accountable for 
errors in a student handbook relating to 
graduation requirements, and there was 
no substantial compliance with the Act 
where the counselor was only evaluated 
once during his 14-year tenure at a school. 
Bismarck Sch. Dist. v. Sims, 2012 Ark. 
App. 239, — S.W.3d — (2012). 



6-17-1504. Evaluation — Effect. 



CASE NOTES 



Compliance. 

Nonrenewal of a counselor's employ- 
ment contract violated the Arkansas 
Teacher Fair Dismissal Act of 1983, § 6- 
17-1501 et seq., because it was unreason- 
able to hold the counselor accountable for 
errors in a student handbook relating to 



graduation requirements, and there was 
no substantial compliance with the Act 
where the counselor was only evaluated 
once during his 14-year tenure at a school. 
Bismarck Sch. Dist. v. Sims, 2012 Ark. 
App. 239, — S.W.3d — (2012). 



6-17-1506. Contract renewal — Notice of nonrenewal — Rescis- 
sion. 

CASE NOTES 

Cited: Bismarck Sch. Dist. v. Sims, 
2012 Ark. App. 239, — S.W.3d — (2012). 

6-17-1507. Notice of termination recommendation. 

CASE NOTES 



Adequacy of Notice. 

In an action under the Teacher Fair 
Dismissal Act of 1983, §§ 6-17-1501 to 
6-17-1510, the superintendent complied 
with the notice requirements of this sec- 
tion by setting forth the basis for each of 



the four grounds for the teacher's termi- 
nation in such clear detail that any rea- 
sonable teacher would have had no 
trouble preparing a defense. Timpani v. 
Lakeside Sch. Dist., 2011 Ark. App. 668, 
— S.W.3d — (2011). 



95 



STUDENTS 



6-18-227 



6-17-1510. Board action on termination or nonrenewal — Ap- 
peal. 



CASE NOTES 



Analysis 

Dismissal Improper. 
Parol Evidence. 

Dismissal Improper. 

Nonrenewal of a counselor's employ- 
ment contract violated the Arkansas 
Teacher Fair Dismissal Act of 1983, § 6- 
17-1501 et seq., because it was unreason- 
able to hold the counselor accountable for 
errors in a student handbook relating to 
graduation requirements, and there was 
no substantial compliance with the Act 
where the counselor was only evaluated 
once during his 14-year tenure at a school. 



Bismarck Sch. Dist. v. Sims, 2012 Ark. 
App. 239, — S.W.3d — (2012). 

Parol Evidence. 

Circuit court did not improperly con- 
sider parol evidence in upholding a school 
district's decision to not renew a teacher's 
contract because additional testimony and 
evidence was specifically permitted by 
subsection (d) of this section, the Arkan- 
sas Teacher Fair Dismissal Act, and was 
properly considered by the circuit court; 
accordingly, the parol-evidence rule was 
inapplicable, Kasinger v. East End Sch. 
Dist., 2011 Ark. App. 595, — S.W.3d — 
(2011). 



Subchapter 24 — Teacher Compensation Program of 2003 
6-17-2403. Minimum teacher compensation schedule. 



A.C.R.C. Notes. Acts 2012, No. 269, 
§ 23, provided: "AVERAGE TEACHER 
SALARY. The Arkansas Department of 
Education is requested to calculate Aver- 
age Teacher Salary in the Department's 
Annual Statistical Report to not include 
extra duty funds. Specifically, the Depart- 
ment is requested to calculate the Average 
Teacher Salary amount using the Na- 



tional Education Association definitions 
for Average Salary for Classroom Teach- 
ers. The Arkansas Department of Educa- 
tion shall submit this data annually to the 
National Education Association in accor- 
dance with that organization's deadlines 
for submission for their report 'Rankings 
and Estimates' which includes state-by- 
state teacher salary comparisons." 



CHAPTER 18 
STUDENTS 



subchapter. 
2. Attendance. 



Subchapter 2 — Attendance 



SECTION. 

6-18-227. Arkansas Opportunity Public 
School Choice Act of 2004. 



6-18-227. Arkansas Opportunity Public School Choice Act of 
2004. 

(a)(1) This section may be referred to and cited as the "Arkansas 
Opportunity Public School Choice Act of 2004". 



6-18-227 EDUCATION 96 

(2)(A) The purpose of this section is to provide enhanced opportunity 
for students in this state to gain the knowledge and skills necessary 
for postsecondary education, a technical education, or the world of 
work. 

(B) The General Assembly: 

(i) Recognizes that the Arkansas Constitution, as interpreted by 
the Arkansas Supreme Court in Lake View School District No. 25 v. 
Huckabee, 351 Ark. 31 (2002), makes education a paramount duty of 
the state; 

(ii) Finds that the Arkansas Constitution requires the state to 
provide an adequate education; 

(iii) Further finds that a student should not be compelled against 
the wishes of the parent, guardian, or the student, if the student is 
over eighteen (18) years of age, to remain in a school designated as a 
level 1 school under § 6-15-2103 for two (2) or more consecutive 
years; and 

(iv) Shall make available a public school choice option in order to 
give a child the opportunity to attend a public school that is 
performing satisfactorily. 

(C) This section shall take effect with the implementation of school 
performance category levels. 

(3) The General Assembly further finds that giving more options to 
parents and students with respect to where the students attend public 
school will increase the responsiveness and effectiveness of the state's 
schools, since teachers, administrators, and school board members will 
have added incentives to satisfy the educational needs of the students 
who reside in the district. 

(4) A public school choice program is hereby established to enable 
any student to transfer from a failing school to another public school in 
the state, subject to the restrictions contained in this section. 

(b)(1) Upon the request of a parent, guardian, or the student, if the 
student is over eighteen (18) years of age, a student may transfer from 
his or her resident district to another public school in accordance with 
the provisions of this section if: 

(A) The resident public school has been designated pursuant to 
§ 6-15-2103 as a level 1 school for two (2) or more consecutive school 
years; and 

(B) The parent, guardian, or the student, if the student is over 
eighteen (18) years of age, has notified the Department of Education 
and both the sending and receiving school districts of the request for 
a transfer no later than July 30 of the first year in which the student 
intends to transfer. 

(2)(A)(i) For the purposes of continuity of educational choice, the 
transfer shall operate as an irrevocable election for each subsequent 
entire school year and shall remain in force until the student 
completes high school or the parent, guardian, or the student, if the 
student is over eighteen (18) years of age, makes application no later 
than July 30 for attendance or transfer as provided for by §§ 6-18- 
202, 6-18-206, and 6-18-316. 



97 STUDENTS 6-18-227 

(ii) Such a transfer shall be effective at the beginning of the next 
academic year. 

(B) Application for the opportunity public school choice option 
shall be provided by the department, shall contain a notice that a 
transfer under this subsection shall operate as an irrevocable choice 
for at least one (1) entire school year, and shall remain in force until 
the student completes high school as provided in this subsection 
except as otherwise provided by law. 

(3)(A) For each student enrolled in or assigned to a school that has 
been designated as a level 1 school for two (2) or more consecutive 
school years, a school district shall: 

(i) Timely notify the parent, guardian, or the student, if the 
student is over eighteen (18) years of age, as soon as practicable after 
the designation is made, of all options available pursuant to this 
section; and 

(ii) Offer the parent, guardian, or the student, if the student is over 
eighteen (18) years of age, an opportunity to enroll the student in any 
public school that has been designated by the state pursuant to 
§ 6-15-2103 as a school performing higher than that in which the 
student is currently enrolled or to which the student has been 
assigned, but not less than annual performance category level 3. The 
opportunity to continue attending the higher performing public 
school shall remain in force until the student graduates from high 
school. 

(B)(i) The parent or guardian of a student enrolled in or assigned 
to a school that has been designated as a school in level 1 under 
§ 6-15-2103 for two (2) or more consecutive years may choose as an 
alternative to enroll the student in a legally allowable category level 
3 or higher performing public school nearest to the student's legal 
residence. 

(ii) That school or school district shall accept the student and 
report the student for purposes of the funding pursuant to applicable 
state law. 

(C)(i) Students with disabilities who are eligible to receive services 
from the school district under federal or state law, including students 
receiving additional funding through federal title programs specific 
to the Elementary and Secondary Education Act of 1965, 20 U.S.C. 
§ 6301 et seq., and who participate in this program remain eligible to 
receive services from the school district as provided by federal or 
state law. 

(ii) Any funding for such a student shall be transferred to the 
district to which the student transfers. 

(c)(1)(A) The receiving district or charter school may transport 
students to and from the transferring district or charter school, and 
the cost of transporting students shall be the responsibility of the 
transferring district or charter school except as provided under 
subdivisions (c)(1)(B) and (c)(2) of this section. 

(B) A transferring district or charter school shall not be required to 
spend more than four hundred dollars ($400) per student per school 



6-18-227 EDUCATION 98 

year for transportation required under subdivision (c)(1)(A) of this 
section. 

(2) Upon the transferring district's receiving a category level 3 or 
higher for its annual performance, the transportation costs shall no 
longer be the responsibility of the transferring district, and the stu- 
dent's transportation and the costs of the transportation shall be the 
responsibility of the parents. 

(d)(1)(A) Each district school board of directors shall offer the oppor- 
tunity public school choice option within the public schools. 

(B) The opportunity public school choice option shall be offered in 
addition to other existing choice programs. 

(2)(A)(i) A school district shall not deny a student the ability to 
attend a school in the student's school district of choice under this 
section unless there is a lack of capacity at the school in the student's 
school district of choice. 

(ii) Alack of capacity may be claimed by a school district only if the 
school district has reached the maximum student-to-teacher ratio 
allowed under federal law, state law, the rules for standards of 
accreditation, or other applicable regulations. 

(B) The race or ethnicity of a student shall not be used to deny a 
student the ability to attend a school in the student's school district 
of choice under this section. 

(3) A student or the student's parent or guardian may appeal a school 
district's decision to deny admission to a school in a student's school 
district of choice due to lack of capacity to the State Board of Education 
after the student or the student's parent or guardian receives a written 
notice from the school district of choice that admission has been denied. 

(4) The department shall promulgate rules governing the use of 
school capacity as a basis for denying admission under this section. 

(e)(1) The provisions of this section and all student choice options 
created in this section shall comply with § 6-18-206(d), (e), and (i) and 
shall not be subject to any other limitation or restriction provided by 
law. 

(2) If any part of this section conflicts with the provisions of a federal 
desegregation court order applicable to a school district, the provisions 
of the federal desegregation court order shall govern. 

(f) The department shall develop an annual report on the status of 
school choice and deliver the report to the state board, the Governor, 
and the Legislative Council at least ninety (90) days prior to the 
convening of the regular session of the General Assembly. 

(g) Each district school board of directors shall annually report the 
number of students applying for and attending the various types of 
public schools of choice in the district, including schools such as magnet 
schools, according to rules adopted by the state board. 

(h)(1) A receiving district shall accept credits toward graduation that 
were awarded by another district. 

(2) The receiving district shall award a diploma to a nonresident 
student if the student meets the receiving district's graduation require- 
ments. 



99 STUDENTS 6-18-227 

(i) For purposes of determining a school district's state equalization 
aid, the nonresident student shall be counted as a part of the average 
daily membership of the district to which the student has transferred. 

(j)(l) All school districts shall report to the department on an annual 
basis the race, gender, and other pertinent information needed to 
properly monitor compliance with the provisions of this section. 

(2) The reports may be on those forms that are prescribed by the 
department, or the data may be submitted electronically by the district 
using a format authorized by the department. 

(3) The department may put on probation the superintendent of any 
school district that fails to file its report each year or fails to file any 
other information with a published deadline requested from school 
districts by the department so long as thirty (30) calendar days are 
given between the request for the information and the published 
deadline. 

(4) A copy of the report shall be provided to the interim House 
Committee on Education and the interim Senate Committee on Edu- 
cation. 

(k)(l) Unless excused by the school for illness or other good cause: 

(A) Any student participating in the opportunity public school 
choice option shall remain in attendance throughout the school year 
and shall comply fully with the school's code of conduct; and 

(B) The parent or guardian of each student participating in the 
opportunity public school choice option shall comply fully with the 
receiving public school's parental involvement requirements. 

(2) A participant who fails to comply with this section shall forfeit the 
opportunity public school choice option. 

(1)(1) The maximum opportunity public school choice funds granted 
for an eligible student shall be calculated based on applicable state law. 

(2) The receiving school district shall report all students who trans- 
fer from another public school under this program. The students 
attending public schools pursuant to the opportunity public school 
choice option shall be reported separately from those students reported 
for purposes of compliance with applicable state law. 

(3) The public school that provides services to students with disabili- 
ties shall receive funding as determined by applicable federal and state 
law. 

(m) The state board shall adopt any rules necessary for the imple- 
mentation of this section pursuant to the Arkansas Administrative 
Procedure Act, § 25-15-201 et seq. 

(n) A district under this program shall request public service an- 
nouncements to be made over the broadcast media and in the print 
media at such times and in such a manner as to inform parents or 
guardians of students in adjoining districts of the availability of the 
program, the application deadline, and the requirements and procedure 
for nonresident students to participate in the program. 



6-18-502 



EDUCATION 



100 



History. Acts 2003 (2nd Ex. Sess.), No. 
35, § 7; 2005, No. 2121, § 22; 2011, No. 
1124, §§ 1, 2; 2011, No. 1147, § 1. 

A.C.R.C. Notes. Pursuant to § 1-2- 
207, subdivision (e)(1) is set out above as 
amended by Acts 2011, No. 1147, § 1. 
Subdivision (e)(1) was also amended by 
Acts 2011, No. 1124, § 1, to read as fol- 
lows: "(e)(1) The provisions of this section 
and all student choice options created in 
this section are subject only to the limita- 
tions of § 6-18-206(d)-(e), (g), and (i)." 

Publisher's Notes. This section is be- 
ing set out to reflect a correction in the 
2011 supplement. 

Amendments. The 2011 amendment 
by No. 1124, in present (e)(1), inserted 



"only" and substituted "§ 6-18-206(e)-(e), 
(g), and (if for "6-18-206(d)-(f)"; added 
(e)(2); and deleted former (k)(2) and redes- 
ignated the remaining subdivision accord- 
ingly. 

The 2011 amendment by No. 1147 re- 
wrote (c)(1); substituted "responsibility of 
the transferring district" for "responsibil- 
ity of the state" in (c)(2); rewrote (d)(2); 
inserted (d)(3) and (d)(4); added (e)(2) and 
redesignated the existing language of (e) 
as (e)(1); and substituted "shall comply 
with § 6-18-206(d), (e), and (i) and shall 
not be subject to any other limitation or 
restriction provided by law" for "are sub- 
ject to the limitations of § 6-18-206(d)-(f)" 
in (e)(1). 



Subchapter 5 — Discipline 

6-18-502. Guidelines for development of school district student 
discipline policies. 

RESEARCH REFERENCES 

ALR. Propriety of School Policies, and or Use of Cell Phones in School. 70 
Measures Taken Pursuant to School Poli- A.L.R.6th 145. 
cies, Prohibiting the Possession, Display, 

Subchapter 7 — Health 
6-18-703. School-based health clinics. 



A.C.R.C. Notes. Acts 2012, No. 246, 
§ 28, provided: "STATE FUND RESTRIC- 
TIONS. No state funds shall be used for 
abortion referral in public schools, or for 
abortion services. Funds shall be ex- 
pended in accordance with Arkansas Code 
Annotated § 6-18-703. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 269, § 29, provided: 
"STATE FUND RESTRICTIONS. No 
state funds shall be used for abortion 
referral in public schools, or for abortion 
services. Funds shall be expended in ac- 



cordance with Arkansas Code Annotated 
§6-18-703. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 280, § 29, provided: 
"STATE FUND RESTRICTIONS. No 
state funds shall be used for abortion 
referral in public schools, or for abortion 
services. Funds shall be expended in ac- 
cordance with Arkansas Code Annotated 
§ 6-18-703. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



101 



FINANCES 

CHAPTER 20 
FINANCES 



6-20-415 



Subchapter 2 — Management and Apportionment of Funds Generally 



6-20-212. Desegregation expenses. 



A.C.R.C. Notes. Acts 2012, No. 269, 
§ 10, provided: "DESEGREGATION EX- 
PENSES. (A) For the fiscal year ending 
June 30, and for each fiscal year thereaf- 
ter, the Department of Education shall 
from time to time as needed, certify to the 
State Treasurer and the Chief Fiscal Offi- 
cer of the State, the amount of funds 
disbursed or approved to be disbursed by 
the Department of Education for desegre- 
gation expenses under any 'Desegregation 
Settlement Agreement'. Upon the receipt 



of such certification, the State Treasurer, 
after making those deductions as set out 
in Arkansas Code 19-5-202(b)(2)(B), shall 
also deduct from the net general revenues 
the amount certified and transfer this 
amount to the Department of Education 
Public School Fund Account there to be 
used exclusively for payment of or reim- 
bursement for expenses incurred from the 
Department of Education Public School 
Fund Account under any 'Desegregation 
Settlement Agreement'." 



6-20-224. Federal turnback funds. 



A.C.R.C. Notes. Acts 2012, No. 246, 
§21, provided: "TURNBACK FUNDS. 
Any Federal Mineral Leasing Funds, Fed- 
eral Forest Reserve Funds, Federal Flood 
Control Funds, or any similar turnback 
funds in the State Treasury for which the 
eligible county and/or school district can- 



not be identified may be transferred to the 
Department of Education Public School 
Fund Account and used for any lawful 
school purpose. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 4 — District Finances 



6-20-415. Consultants. 



A.C.R.C. Notes. Acts 2012, No. 246, 
§ 27, provided: "PULASKI COUNTY DE- 
SEGREGATION CASE COSTS FUND 
TRANSFER — PUBLIC SCHOOL FUND. 
The Department of Education shall retain 
and use any unexpended balance of funds 
transferred to the Department of Educa- 
tion Fund Account during the 2007-09 
biennium for the purpose of providing 
funds for Pulaski County Desegregation 
Case Costs incurred by the Department of 
Education and the three (3) Pulaski 
County School Districts to comply with 
the provisions of Arkansas Code §6-20-415 
and §6-20-416. These retained funds shall 
be used exclusively to provide funds for 



Pulaski County Desegregation Case Costs 
incurred by the Department of Education 
and the three (3) Pulaski County School 
Districts under Arkansas Code §6-20-415 
and §6-20-416. 

"No portion of these retained funds 
shall be expended by the Department of 
Education without certification by the 
Commissioner of the Department of Edu- 
cation to the Chief Fiscal Officer of the 
State and prior approval by the Chief 
Fiscal Officer of the State. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-20-416 



EDUCATION 



102 



6-20-416. Desegregation funding. 



A.C.R.C. Notes. Acts 2012, No. 246, 
§ 27, provided: "PULASKI COUNTY DE- 
SEGREGATION CASE COSTS FUND 
TRANSFER — PUBLIC SCHOOL FUND. 
The Department of Education shall retain 
and use any unexpended balance of funds 
transferred to the Department of Educa- 
tion Fund Account during the 2007-09 
biennium for the purpose of providing 
funds for Pulaski County Desegregation 
Case Costs incurred by the Department of 
Education and the three (3) Pulaski 
County School Districts to comply with 
the provisions of Arkansas Code §6-20-415 
and §6-20-416. These retained funds shall 
be used exclusively to provide funds for 



Pulaski County Desegregation Case Costs 
incurred by the Department of Education 
and the three (3) Pulaski County School 
Districts under Arkansas Code §6-20-415 
and §6-20-416. 

"No portion of these retained funds 
shall be expended by the Department of 
Education without certification by the 
Commissioner of the Department of Edu- 
cation to the Chief Fiscal Officer of the 
State and prior approval by the Chief 
Fiscal Officer of the State. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 6 — Local School District Isolated Funding 



A.C.R.C. Notes. Acts 2012, No. 269, 
§ 7, provided: "FUND ALLOCATION. 
The appropriation for the Isolated Fund- 
ing line item in Section 1 of this Act may 
be fully funded. Any funding and appro- 
priation for Isolated Funding that is not 
utilized shall be transferred to the appro- 
priation for Special Needs Isolated Fund- 
ing in Section 1 of this Act and shall be 
used there for fully funding each subsec- 
tion (c) through (f) of Arkansas Code §6- 
20-604 on a pro rata basis until the avail- 
able funds are exhausted. Pro rata basis is 
defined as providing each district qualify- 
ing for additional funding under subsec- 



tions (c) through (f) a proportionate share 
based on how each district's additional 
funding amount bears to the total addi- 
tional funding amounts for all qualifying 
districts. If any funding and appropriation 
remains after funding each subsection (c) 
through (f) of Arkansas Code §6-20-604 
the remaining balance shall be used to 
fund the provisions of Arkansas Code §6- 
20-604 (h) on an equal basis until the 
available funds are exhausted. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-20-604. Additional funding. 



A.C.R.C. Notes. Acts 2012, No. 269, 
§ 31, contained a previous version of § 6- 
20-604(e) and was set out in that act 
indicating no amendment. A.C.R.C. staff 
has determined that the inclusion of § 6- 



20-604(e) in Acts 2012, No. 269, § 31, was 
a clerical error. Section 6-20-604(e) is set 
out above as last amended by Acts 2011, 
No. 1131, § 4. 



103 



SCHOOL PROPERTY AND SUPPLIES 



6-21-105 



Subchapter 22 — Arkansas Educational Financial Accounting and 

Reporting Act of 2004 

6-20-2202. Budget and expenditure report. 

CASE NOTES 



Budget Not Deficient. 

School districts did not submit deficient 
budgets because they included within 
their budgeted revenue the uniform rate 
of tax in excess of the foundation-funding 
amount. These funds had to be returned 
solely to the districts from which they 



were derived, and any withholding of cat- 
egorical funds from the school districts 
based on the allegedly deficient budget 
was erroneous. Kimbrell v. McCleskey, 
2012 Ark. 443, — S.W.3d — , 2012 Ark. 
LEXIS 472 (Nov. 29, 2012). 



Subchapter 23 — Public School Funding Act of 2003 

6-20-2306. Department of Education to provide funding 
justments for overpayments. 

CASE NOTES 



— Ad- 



Excess Funds. 

Education commissioner, a department 
of education, and a state treasurer were 
not authorized to distribute excess funds 
to another school district under § 26-80- 
101(b)(1)(B); the retention of revenue in 
excess of foundation funding resulted in 
variations, which were contemplated by 



Ark. Const, art. 14, § 3(a). Moreover, the 
excess funds did not constitute an over- 
payment, such that the remedies in this 
section could have been implemented. 
Kimbrell v. McCleskey, 2012 Ark. 443, — 
S.W.3d — , 2012 Ark. LEXIS 472 (Nov. 29, 
2012). 



CHAPTER 21 
SCHOOL PROPERTY AND SUPPLIES 



Subchapter 1 — General Provisions 



6-21-105. Braille and large print textbooks, 



A.C.R.C. Notes. Acts 2012, No. 180, 
§ 11, provided: "BRAILLE AND LARGE 
PRINT TEXTBOOKS. The State Board of 
Education shall make reasonable rules 
and regulations to implement the Braille 
and Large Print Textbooks appropriation 
and is hereby authorized to negotiate di- 
rectly with publishers of Braille and Large 
Print Textbooks for the purchase of such 



textbooks. The Arkansas School for the 
Blind (ASB) is authorized to use funds 
from this account for costs associated with 
providing Braille Textbooks and Large 
Print Textbooks to public schools. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-21-813 



EDUCATION 



104 



Subchapter 8 — Arkansas Public School Academic Facilities 

Program Act 



6-21-813. Inspections. 

A.C.R.C. Notes. Acts 2012, No. 274, 
§ 43, provided: "ARKANSAS PUBLIC 
SCHOOL ACADEMIC FACILITIES PRO- 
GRAM. The Arkansas Department of En- 
vironmental Quality shall adopt policies 
before September 1, 2012 to ensure its 
cooperation regarding provision to the Di- 
vision of Public School Academic Facilities 
and Transportation copies of the reports of 
inspections required under Arkansas 
Code § 6-21-813 (d) through (f) for the 
Arkansas Public School Academic Facili- 
ties Program Act." 



Acts 2012, No. 280, § 17, provided: "AR- 
KANSAS PUBLIC SCHOOL ACADEMIC 
FACILITIES PROGRAM. The Depart- 
ment of Health shall adopt policies before 
September 1, 2012 to ensure its coopera- 
tion regarding provision to the Division of 
Public School Academic Facilities and 
Transportation copies of the reports of 
inspections required under Arkansas 
Code § 6-21-813 (d) through (f) for the 
Arkansas Public School Academic Facili- 
ties Program Act." 



CHAPTER 23 
ARKANSAS CHARTER SCHOOLS ACT OF 1999 

Subchapter 5 — Open-Enrollment Public Charter Schools — 

Funding 



6-23-503. Use of funding. 

A.C.R.C. Notes. Acts 2012, No. 269, 
§ 21, provided: "OPEN-ENROLLMENT 
VIRTUAL CHARTER SCHOOL FUND- 
ING RESTRICTIONS. Regardless of any 
provision of law to the contrary, no school 
district shall receive state funding for the 
2012-2013 school year for those students 
who are included in the district's average 



daily membership for the previous school 
year but who are attending any open- 
enrollment charter school that uses inter- 
net, long-distance, or virtual technology 
as the primary method of teaching. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



SUBTITLE 3. SPECIAL EDUCATIONAL PROGRAMS 

CHAPTER 42 
GIFTED AND TALENTED CHILDREN 

Subchapter 3 — Arkansas School for Mathematics, Sciences, and the 

Arts 



A.C.R.C. Notes. Acts 2012, No. 223, 
§25, provided: "SCHOOL FOR MATH- 
EMATICS, SCIENCES AND THE ARTS 
TEACHER GRANT RELATED FUND- 
ING PROVISION. Teachers of the School 
for Mathematics, Sciences, and the Arts 
who, in addition to fulfilling annual teach- 



ing contract requirements also write 
grants, grant progress reports and write 
and publish papers may be authorized as 
additional annual compensation an 
amount up to 1/10 of their annual salary. 
Such additional compensation shall not be 
construed as exceeding the maximum sal- 



105 



SCHOOLS FOR THE BLIND AND THE DEAF 



6-43-113 



ary authorized for said employees. The 
additional compensation authorized by 
this section shall not be paid from state 
general revenues or Educational Excel- 



lence Trust Fund monies. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 43 

ARKANSAS SCHOOL FOR THE BLIND AND ARKANSAS 
SCHOOL FOR THE DEAF 



Subchapter 1 — General Provisions 



6-43-102. Powers and duties of board, 



A.C.R.C. Notes. Acts 2012, No. 170, 
§ 13, provided: "SHARED SERVICES. 
The Chief Fiscal Officer of the State and 
the State Treasurer are authorized to es- 
tablish a joint paying account in the State 
Treasury, upon direction of the Board of 
Trustees for the Arkansas School for the 
Blind and the Arkansas School for the 
Deaf. The Board may transfer positions, 
funds and appropriations to the paying 
account from either school to serve both 
schools in the areas of Accounting, Person- 
nel, Inventory, Safety and Health Ser- 
vices. 

"Funding and appropriations for this 
account will be from transfers from the 
fund accounts and appropriations of each 
agency and shall be divided proportion- 
ately from each agency based on student 
population. Said funds shall be payable 
from the joint account as if the positions 
and other budgetary line items of appro- 
priation had originally been established in 
the joint account. Supervision of this ac- 
count and supervision of the positions 
within may come from either school as 
determined by the Board of Trustees. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Acts 2012, No. 180, § 10, provided: 
"SHARED SERVICES. The Chief Fiscal 
Officer of the State and the State Trea- 
surer are authorized to establish a joint 
paying account in the State Treasury, 
upon direction of the Board of Trustees for 
the Arkansas School for the Blind and the 
Arkansas School for the Deaf. The Board 
may transfer positions, funds and appro- 
priations to the paying account from ei- 
ther school to serve both schools in the 
areas of Accounting, Personnel, Inventory, 
Safety and Health Services. 

"Funding and appropriations for this 
account will be from transfers from the 
fund accounts and appropriations of each 
agency and shall be divided proportion- 
ately from each agency based on student 
population. Said funds shall be payable 
from the joint account as if the positions 
and other budgetary line items of appro- 
priation had originally been established in 
the joint account. Supervision of this ac- 
count and supervision of the positions 
within may come from either school as 
determined by the Board of Trustees. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-43-113. Compensation limitation. 



A.C.R.C. Notes. Acts 2012, No. 170, 
§ 8, provided: "ADDITIONAL SALARY/ 
COMPENSATION PROVISION. No em- 
ployee drawing a salary or other form of 
compensation from the Arkansas Schools 
for the Deaf or Blind shall be paid an 



additional salary or receive additional 
compensation, other than reimbursement 
for actual expenses, from that agency, nor 
from any other agency or institution of 
higher education, except from the Super- 
intendent's written certification to and 



6-43-116 



EDUCATION 



106 



approval by the Chief Fiscal Officer of the 
State that the work performed by the 
employee for the other position does not 
interfere with the proper and required 
performance of the employee's primary 
duties, and that the combined salary pay- 
ments from both positions will not exceed 
the maximum annual salary for which- 
ever of the two positions has the higher 
authorized maximum annual salary. 

"Any employee knowingly violating the 
provisions of this section shall be subject 
to immediate termination and shall be 
barred from employment by any agency or 
institution of the State of Arkansas for a 
period of not less than three (3) years or 
until such employee shall repay to the 
State of Arkansas any sums received by 
such employee in violation of this section, 
together with interest at a rate of ten 
percent (10%) per annum. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 180, § 9, provided: "AD- 
DITIONAL SALARY/COMPENSATION 
PROVISION. No employee drawing a sal- 
ary or other form of compensation from 
the Arkansas Schools for the Deaf or Blind 
shall be paid an additional salary or re- 



ceive additional compensation, other than 
reimbursement for actual expenses, from 
that agency, nor from any other agency or 
institution of higher education, except 
from the Superintendent's written certifi- 
cation to and approval by the Chief Fiscal 
Officer of the State that the work per- 
formed by the employee for the other 
position does not interfere with the proper 
and required performance of the employ- 
ee's primary duties, and that the com- 
bined salary payments from both posi- 
tions will not exceed the maximum annual 
salary for whichever of the two positions 
has the higher authorized maximum an- 
nual salary. 

"Any employee knowingly violating the 
provisions of this section shall be subject 
to immediate termination and shall be 
barred from employment by any agency or 
institution of the State of Arkansas for a 
period of not less than three (3) years or 
until such employee shall repay to the 
State of Arkansas any sums received by 
such employee in violation of this section, 
together with interest at a rate of ten 
percent (10%) per annum. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-43-116. Special allowance. 



A.C.R.C. Notes. Acts 2012, No. 170, 
§ 7, provided: "SPECIAL ALLOWANCE. 
The Arkansas Schools for the Deaf and 
Blind may make special allowances avail- 
able to any employee who performs one of 
the following duties in addition to their 
normal duties: 

"1) Teaching adult education classes, 
parent training, student tutorial services 
on weekends or evenings 

"2) Coaching one or more sports 

"3) Sponsoring a club or organization 
that involves additional hours outside of 
the normal working day 

"4) Interpretive Services 

"Compensation for additional duties 
may not exceed $3,500 per school term for 
any one employee during each fiscal year. 
Such additional compensation shall not be 
construed as exceeding the maximum sal- 
ary authorized for said employee. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Acts 2012, No. 180, § 8, provided: "SPE- 
CIAL ALLOWANCE. The Arkansas 
Schools for the Deaf and Blind may make 
special allowances available to any em- 
ployee who performs one of the following 
duties in addition to their normal duties: 

"1) Teaching adult education classes, 
parent training, student tutorial services 
on weekends or evenings 

"2) Coaching one or more sports 

"3) Sponsoring a club or organization 
that involves additional hours outside of 
the normal working day 

"4) Interpretive Services 

"Compensation for additional duties 
may not exceed $3,500 per school term for 
any one employee during each fiscal year. 
Such pay shall not be construed as exceed- 
ing the maximum salary authorized for 
said position. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



107 SCHOOLS FOR THE BLIND AND THE DEAF 6-43-321 

Subchapter 2 — Arkansas School for the Blind 
6-43-213. Salaries. 



A.C.R.C. Notes. Acts 2012, No. 170, 
§ 14, provided: "TEACHER SALARY IN- 
CREASE. In the event that an act is 
enacted in which the public schools re- 
ceive funds from the General Assembly to 
raise the salaries of teachers employed in 
the public school districts, the Arkansas 
School for the Deaf and the Arkansas 
School for the Blind shall be included. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Acts 2012, No. 180, § 14, provided: 
"TEACHER SALARY INCREASE. In the 
event that an act is enacted in which the 
public schools receive funds from the Gen- 
eral Assembly to raise the salaries of 
teachers employed in the public school 
districts, the Arkansas School for the Deaf 
and the Arkansas School for the Blind 
shall be included. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 3 — Arkansas School for the Deaf 



6-43-305. Teachers generally. 

A.C.R.C. Notes. Acts 2012, No. 170, 
§ 14, provided: "TEACHER SALARY IN- 
CREASE. In the event that an act is 
enacted in which the public schools re- 
ceive funds from the General Assembly to 
raise the salaries of teachers employed in 
the public school districts, the Arkansas 
School for the Deaf and the Arkansas 
School for the Blind shall be included. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Acts 2012, No. 180, § 14, provided: 
"TEACHER SALARY INCREASE. In the 
event that an act is enacted in which the 
public schools receive funds from the Gen- 
eral Assembly to raise the salaries of 
teachers employed in the public school 
districts, the Arkansas School for the Deaf 
and the Arkansas School for the Blind 
shall be included. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-43-320. Shift differential. 



A.C.R.C. Notes. Acts 2012, No. 170, 
§ 9, provided: "SHIFT DIFFERENTIAL. 
For Arkansas School for the Deaf, shift 
work must begin not earlier than 2:00 
p.m. and end no later than 8:00 a.m. the 



following day. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-43-321. Maintenance, transportation, and security for the Ar- 
kansas School for the Blind. 



A.C.R.C. Notes. Acts 2012, No. 170, 
§ 12, provided: "MAINTENANCE/ 
TRANSPORTATION/SECURITY. The Ar- 
kansas School for the Deaf shall be re- 
sponsible for providing maintenance, 
transportation, and security for the Ar- 
kansas School for the Blind. The Arkansas 



School for the Deaf is authorized to spend 
general revenue funds to provide for these 
services. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



EDUCATION 

CHAPTER 45 
ARKANSAS BETTER CHANCE PROGRAM 



108 



A.C.R.C. Notes. Acts 2012, No. 269, 
§ 22, provided: "BETTER CHANCE PRO- 
GRAM ADMINISTRATIVE FEES. The 
Department of Education is hereby autho- 
rized to expend a maximum of two percent 
(2%) of available funds for administration 
of the Better Chance Program. Up to 1.8% 
of available funds shall be used to admin- 
ister the program and to monitor program 
grantees to ensure compliance with pro- 
grammatic standards. Prior to the utiliza- 
tion of the remaining 0.2% of available 
funds, the Department of Education shall 
seek prior review and approval of the 
Arkansas Legislative Council or Joint 
Budget Committee by providing a written 
request to include the following: a) the 
Department's reason(s) for the use of the 
funds and b) the amount of funds that will 
be expended. The Department may con- 
tract with the Division of Child Care and 
Early Childhood Education to administer 
the program. 

"Determining the maximum number of 
employees and the maximum amount of 



appropriation and general revenue fund- 
ing for a state agency each fiscal year is 
the prerogative of the General Assembly. 
This is usually accomplished by delineat- 
ing such maximums in the appropriation 
act(s) for a state agency and the general 
revenue allocations authorized for each 
fund and fund account by amendment to 
the Revenue Stabilization law. Therefore, 
it is both necessary and appropriate that 
the General Assembly maintain oversight 
by requiring prior approval of the Legis- 
lative Council or Joint Budget Committee 
as provided by this section. The require- 
ment of approval by the Legislative Coun- 
cil or Joint Budget Committee is not a 
severable part of this section. If the re- 
quirement of approval by the Legislative 
Council or Joint Budget Committee is 
ruled unconstitutional by a court of com- 
petent jurisdiction, this entire section is 
void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



SUBTITLE 4. VOCATIONAL AND TECHNICAL 
EDUCATION 

CHAPTER 50 
GENERAL PROVISIONS 



Subchapter 7 — Arkansas Existing Workforce Training Act of 1995 



A.C.R.C. Notes. Acts 2012, No. 276, 
§ 23, provided: "ADULT EDUCATION 
DISTRIBUTION. All funds that become 
available for Adult Education shall be 
distributed to those administrative units 
determined to be operating efficient and 
effective adult education programs, under 
criteria established by the State Board of 
Career Education. The criteria shall in- 
clude the relative efficiency of administra- 
tion of the program in the counties served 
and achievement of federal performance 
indicators. The State Board of Career 



Education shall promulgate rules and 
regulations for the distribution of funds in 
accordance with criteria to be determined 
by the Board. In the distribution of funds 
to local units the Board shall consider 
performance in meeting state and federal 
performance indicators. Unallocated 
funds will be redistributed based upon 
need as determined by the State Board of 
Career Education. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



109 VOCATIONAL AND TECHNICAL SCHOOLS 6-51-105 

CHAPTER 51 
VOCATIONAL AND TECHNICAL SCHOOLS 



A-C.R.C. Notes. Acts 2012, No. 276, 
§ 25, provided: "SECONDARY TECHNI- 
CAL CENTER AID PROVISIONS. 

"(a)(1) Secondary technical center aid 
shall be calculated and distributed by the 
Department of Career Education based 
upon each secondary technical center's 
eligible student full-time equivalent 



count. 

"(2) Secondary technical center aid 
shall not be based upon the percentage of 
total enrollment from any one sending 
school. 

"(b) This section expires on June 30, 
2013." 



Subchapter 1 — General Provisions 



6-51-105. Priorities — Vocational-technical institutions. 



A.C.R.C. Notes. Acts 2012, No. 119, 
§ 5, provided: "PRIORITIES. A high pri- 
ority of the University of Arkansas Com- 
munity College at Batesville is to provide 
quality technical training programs, 
transfer programs, and workforce educa- 
tion. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 120, § 5, provided: "PRI- 
ORITIES. A high priority of the College of 
The Ouachitas shall be to combat illit- 
eracy and to provide industrial training in 
the work place. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 122, § 5, provided: "PRI- 
ORITIES. A high priority of South Arkan- 
sas Community College shall be to combat 
illiteracy and to provide industrial train- 
ing in the work place. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 173, § 5, provided: "PRI- 
ORITIES. A high priority of the Ozarka 
College shall be to combat illiteracy and to 
provide industrial training in the work 
place. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 176, § 5, provided: "PRI- 



ORITIES. A high priority of the Black 
River Technical College shall be to combat 
illiteracy and to provide industrial train- 
ing in the work place. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 188, § 8, provided: "PRI- 
ORITIES. A high priority of Mid-South 
Community College shall be to combat 
illiteracy and to provide industrial train- 
ing in the work place concentrating on 
manufacturing industry needs in Critten- 
den County. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 190, § 5, provided: "PRI- 
ORITIES. A high priority of the Pulaski 
Technical College shall be to provide ac- 
cess to high quality education that pro- 
motes student learning and support the 
economic development of the state. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 193, § 5, provided: "PRI- 
ORITIES. A high priority of the Arkansas 
State University — Mountain Home shall 
be to combat illiteracy and to provide 
industrial training in the work place. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 215, § 5, provided: "PRI- 



6-51-105 



EDUCATION 



110 



ORITIES. A high priority of the Univer- 
sity of Arkansas Community College at 
Morrilton shall be to provide a well-quali- 
fied workforce through quality educa- 
tional programs of occupational and tech- 
nical education. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 231, § 5, provided: "PRI- 
ORITIES. Cossatot Community College of 
the University of Arkansas considers the 
following items HIGH PRIORITY and 
within the role and scope of the college: 

"(1) The recruitment of underserved 
populations in the CCCUA service area, 
including but not limited to: Latinos, Af- 
rican Americans, Aging, and Non-Tradi- 
tional students, 

"(2) The development and offering of 
viable programs as defined by the Arkan- 
sas Department of Higher Education and 
the deletion of programs which are not 
viable, 

"(3) The cultivating of relationships in 
the community that establishes more in- 
dustry training and promotes economic 
development within the CCCUA service 
area, 



"(4) The continued development of 
working relationships with area K-12 in- 
stitutions to provide concurrent enroll- 
ment, Advanced Placement, technical 
training, and college readiness to these 
students, 

"(5) The development of a comprehen- 
sive change in the way the college pre- 
pares students for college-level work, in- 
cluding the development of special 
mastery learning programs within reme- 
dial math and English courses, 

"(6) The continued expansion of cam- 
pus facilities to accommodate continued 
record growth in credit and non-credit 
programs. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 234, § 5, provided: "PRI- 
ORITIES. A high priority of the Univer- 
sity of Arkansas Community College at 
Hope is to provide quality technical train- 
ing programs, transfer programs, and 
workforce education. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 2 — Establishment and Administration Generally 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 35, provided: "COOPERATION 
AGREEMENTS. Any two-year institution 
of Higher Education that has its main or a 
satellite campus located within a twenty 
five mile radius of any four-year institu- 
tion of higher education shall enter into a 



written agreement with that four-year in- 
stitution which must address duplication 
of services between the institutions. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 54 
COLLEGE OF THE OUACHITAS 



A.C.R.C. Notes. Acts 2012, No. 120, 
§ 5, provided: "PRIORITIES. A high pri- 
ority of the College of The Ouachitas shall 
be to combat illiteracy and to provide 



industrial training in the work place. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Ill 



GENERAL PROVISIONS 



SUBTITLE 5. POSTSECONDARY AND HIGHER 
EDUCATION GENERALLY 

CHAPTER 60 
GENERAL PROVISIONS 



A.C.R.C. Notes. Acts 2012, No. 221, 
§ 7, provided: "REALLOCATION OF RE- 
SOURCES. Upon determination by the 
president or chancellor of an institution of 
higher education that a reallocation of 
resources for purposes of reorganization 
or consolidation of administrative func- 
tions within the institution is necessary 
for efficient and effective operations of the 
institution, the president or chancellor, 
with approval of the institution's board of 
trustees, may have the authority to trans- 
fer positions, appropriations and related 
funds between campuses, divisions, 
branches, and other budgetary units of 
the institution, after receiving prior ap- 
proval of the Legislative Council or Joint 
Budget Committee. The transfers of posi- 
tions, programs, or activities shall be used 
for those purposes for which the appro- 
priations were approved by the General 
Assembly. The transfers, consolidations, 
or reorganizations which involve aca- 
demic programs shall be reviewed by the 
Department of Higher Education prior to 
submission to the Legislative Council or 
Joint Budget Committee. Provided, how- 
ever, that the institution shall be limited 
to submitting no more than two (2) indi- 
vidual transaction transfer requests dur- 
ing any fiscal year and shall be further 
limited to no more than five percent (5%) 
of the total General Revenue and Special 
Revenue appropriation, funding, positions 
specific to each institution and no Tobacco 
Settlement funds or appropriations may 
be reallocated pursuant to this section. 

"Determining the maximum number of 
employees and the maximum amount of 
appropriation and general revenue fund- 
ing for institutions of higher education 
each fiscal year is the prerogative of the 
General Assembly. This is usually accom- 
plished by delineating such maximums in 
the appropriation act(s) for institutions of 
higher education and the general revenue 
allocations authorized for each fund and 



fund account by amendment to the Rev- 
enue Stabilization law. Further, the Gen- 
eral Assembly has determined that insti- 
tutions of higher education may operate 
more efficiently if some flexibility is pro- 
vided to institutions of higher education 
authorizing broad powers under this Sec- 
tion. Therefore, it is both necessary and 
appropriate that the General Assembly 
maintain oversight by requiring prior ap- 
proval of the Legislative Council or Joint 
Budget Committee as provided by this 
section. The requirement of approval by 
the Legislative Council or Joint Budget 
Committee is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council or Joint Budget 
Committee is ruled unconstitutional by a 
court of competent jurisdiction, this entire 
section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 247, § 17, provided: "RE- 
ALLOCATION OF RESOURCES FOR 
INSTITUTIONS OF HIGHER EDUCA- 
TION. Upon determination by the presi- 
dent or chancellor of an institution of 
higher education that a reallocation of 
resources for purposes of reorganization 
or consolidation of administrative func- 
tions within the institution is necessary 
for efficient and effective operations of the 
institution, the president or chancellor, 
with approval of the institution's board of 
trustees, may have the authority to trans- 
fer positions, appropriations and related 
funds between campuses, divisions, 
branches, and other budgetary units of 
the institution, after receiving prior ap- 
proval of the Legislative Council or Joint 
Budget Committee. The transfers of posi- 
tions, programs, or activities shall be used 
for those purposes for which the appro- 
priations were approved by the General 
Assembly. The transfers, consolidations, 
or reorganizations which involve aca- 



6-60-211 



EDUCATION 



112 



demic programs shall be reviewed by the 
Department of Higher Education prior to 
submission to the Legislative Council or 
Joint Budget Committee. Provided, how- 
ever, that the institution shall be limited 
to submitting no more than two (2) indi- 
vidual transaction transfer requests dur- 
ing any fiscal year and shall be further 
limited to no more than five percent (5%) 
of the total General Revenue and Special 
Revenue appropriation, funding, positions 
specific to each institution, and no Tobacco 
Settlement funds or appropriations may 
be reallocated pursuant to this section. 

"Determining the maximum number of 
employees and the maximum amount of 
appropriation and general revenue fund- 
ing for institutions of higher education 
each fiscal year is the prerogative of the 
General Assembly. This is usually accom- 
plished by delineating such maximums in 
the appropriation act(s) for institutions of 
higher education and the general revenue 
allocations authorized for each fund and 
fund account by amendment to the Rev- 
enue Stabilization law. Further, the Gen- 
eral Assembly has determined that insti- 
tutions of higher education may operate 
more efficiently if some flexibility is pro- 
vided to institutions of higher education 
authorizing broad powers under this Sec- 
tion. Therefore, it is both necessary and 
appropriate that the General Assembly 
maintain oversight by requiring prior ap- 
proval of the Legislative Council or Joint 
Budget Committee as provided by this 
section. The requirement of approval by 
the Legislative Council or Joint Budget 



Committee is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council or Joint Budget 
Committee is ruled unconstitutional by a 
court of competent jurisdiction, this entire 
section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 247, § 34, provided: 
"STUDENT UNDERGRADUATE RE- 
SEARCH FELLOWSHIP (SURF) PRO- 
GRAM. The focus of the Student Under- 
graduate Research Fellowship (SURF) 
Program is the continued development of 
undergraduate academic research efforts 
at Arkansas colleges and universities. The 
Arkansas Department of Higher Educa- 
tion shall adopt rules and regulations nec- 
essary for the proper administration of 
the Student Undergraduate Research Fel- 
lowship Program. Administrative func- 
tions and responsibilities may include, but 
not necessarily be limited to, the develop- 
ment of eligibility criteria, collection of 
applications, coordination of student 
evaluations, distribution of public notices, 
and funding of grants for academic re- 
search purposes. Staff of the Arkansas 
Department of Higher Education shall 
administer this program. The Arkansas 
Department of Higher Education shall be 
authorized to expense costs associated 
with the administration of the program, 
from funds made payable from the Higher 
Education Grants Fund Account for the 
Student Undergraduate Research Fellow- 
ship Program as authorized in Section 4 of 
this Act." 



Subchapter 2 — Enrollment and Tuition 

6-60-211. Tuition waiver for Arkansas National Guard soldiers 
and airmen — Tuition assistance for soldiers. 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 22, provided: "NATIONAL GUARD TU- 
ITION INCENTIVE PROGRAM. In addi- 
tion to any other provisions of law, any 
student who receives assistance from the 
appropriation made for the "National 
Guard Tuition Incentive Program" in this 
Act shall repay any loans and/or assis- 
tance if the student receives a discharge 



that is a less than Honorable Discharge. 
Priority for funding shall be given to stu- 
dents already receiving assistance from 
the National Guard Tuition Incentive Pro- 
gram. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



113 POSTSECONDARY INSTITUTIONS GENERALLY 6-61-402 

CHAPTER 61 
POSTSECONDARY INSTITUTIONS GENERALLY 



Subchapter 1 — General Provisions 



A.C.R.C. Notes. Acts 2012, No. 247, 
§27, provided: "AUDIT/REVIEW OF 
STATE SCHOLARSHIP FUNDS. Any 
post-secondary institution that receives 
state scholarship funds administered by 
the Arkansas Department of Higher Edu- 
cation shall be subject to audit/review of 



such funds by the Division of Legislative 
Audit, upon approval of the Legislative 
Joint Audit Committee. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-61-127. Arkansas Higher Education Performance Reporting 
System. 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 28, provided: "AUDIT DATA. All post- 
secondary institutions shall provide to the 
Arkansas Department of Higher Educa- 
tion a copy of the Integrated Post-Second- 
ary Education Data System (IPEDS) data 
within three weeks following the IPEDS 



due date, which shall be subject to audit 
by the Arkansas Department of Higher 
Education. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 4 — Grant Programs 



6-61-402. Contracts and cooperation with Board of Control for 
Southern Regional Education. 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 39, provided: "SREB MINORITY DOC- 
TORAL SCHOLARS PROGRAM REGU- 
LATIONS. The Department of Higher 
Education is authorized to promulgate 



rules and regulations for the administra- 
tion of the Southern Regional Education 
Board (SREB) Minority Doctoral Scholars 
program." 



Subchapter 5 — Community Colleges Generally 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 35, provided: "COOPERATION 
AGREEMENTS. Any two-year institution 
of Higher Education that has its main or a 
satellite campus located within a twenty 
five mile radius of any four-year institu- 
tion of higher education shall enter into a 



written agreement with that four-year in- 
stitution which must address duplication 
of services between the institutions. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-62-708 EDUCATION 114 

CHAPTER 62 
PROPERTY AND FINANCES OF STATE INSTITUTIONS 



Subchapter 7 — Arkansas College Savings Bond Act 



6-62-708. Bonds — Principal amount. 



A.C.R.C. Notes. Acts 2012, No. 247, 
§24, provided: "COLLEGE SAVINGS 
BONDS LIMITATIONS. The total princi- 
pal amount of bonds to be issued during 
any fiscal biennium shall not exceed 
three-hundred million dollars 

($300,000,000), nor shall the principal 
amount of bonds outstanding at any time 



have debt service requirements in excess 
of twenty-four million dollars 
($24,000,000) in any one fiscal year from 
all state revenue sources. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-62-727. Rules and regulations — Acts 1997, No. 1211, 



A.C.R.C. Notes. Acts 2012, No. 247, 
§23, provided: "COLLEGE SAVINGS 
BONDS. The Department of Higher Edu- 
cation shall adopt rules and regulations 
for the allocation of the funds reappropri- 
ated for the development of projects at 
State Institutions of Higher Education 
and the payment of project costs and ex- 
penses of the issuance of the bonds of the 
Arkansas College Savings General Obli- 
gation Bonds Program to ensure that 
funds are allocated and expended in a 
manner consistent with the provisions of 
the Internal Revenue Code applicable to 
the Arkansas College Savings General 
Obligation Bond Program (Program). The 
funds reappropriated for the development 
of projects at State Institutions of Higher 



Education and the payment of project 
costs and expenses of the issuance of the 
bonds of the Arkansas College Savings 
General Obligation Bonds Program shall 
be allocated and expended pursuant to the 
provisions of Arkansas Code 6-62-701 et 
seq. and other laws of this State. The 
expenditure and allocation of funds shall 
be exempt from any other provisions of 
state law which conflicts with any provi- 
sion of the rules and regulations which 
rules and regulations are required to en- 
sure the compliance of the Program with 
the applicable provisions of the Internal 
Revenue Code. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 63 
EMPLOYEES OF STATE INSTITUTIONS 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 42, provided: "CLINICAL EXPANSION 
AND RESEARCH POOL. 

"(a) In order to address personnel 
needs emerging from expanding medical 
research and patient care issues and the 
necessity of recruiting and retaining 
qualified medical, research, and related 
support personnel, the University of Ar- 
kansas for Medical Sciences or its succes- 
sor is authorized for the 2012-2013 fiscal 



year a pool of seven hundred (700) 'Clini- 
cal Expansion and Research Pool' posi- 
tions. These positions are to be used by 
the University of Arkansas for Medical 
Sciences in the event that the personal 
services needs resulting from unantici- 
pated clinical or research programs that 
are initiated during the 2012-2013 fiscal 
year require additional positions, either in 
title, in classification, or in number, that 
are not authorized or contemplated by the 



115 



EMPLOYEES OF STATE INSTITUTIONS 



6-63-314 



General Assembly in Section 1 of this Act. 

"(b) The University of Arkansas for 
Medical Sciences is authorized to access 
the 'Clinical Expansion and Research 
Pool' positions authorized in this Section 
at any time during the fiscal year when it 
is determined by the Chancellor of the 
University of Arkansas for Medical Sci- 
ences, subject to the review and approval 
by the Board of Trustees, that the need for 
additional positions exists. Only Medical 
or research positions shall be established 
under this provision. The Chancellor of 
the University of Arkansas for Medical 
Sciences shall provide a quarterly report 
detailing the justification of allocation of 
positions from this 'Clinical Expansion 
and Research Pool' to the Chief Fiscal 
Officer of the State, to the Department of 
Higher Education, and to the Arkansas 
Legislative Council or Joint Budget Com- 
mittee for review. The report shall also 
include an accounting of the names, titles 
and salaries of personnel who have been 
employed in positions established from 
this pool and the source and duration of 
funds associated with the positions. 

"(c) If the University of Arkansas for 
Medical Sciences requests continuation of 
any 'Clinical Expansion and Research 
Pool' position(s) as established herein dur- 
ing the next fiscal year, the position(s) 
must be requested as a new position(s) in 
the agency's budget request. 



"(d) Determining the number of person- 
nel to be employed by a state agency is the 
prerogative of the General Assembly and 
is usually accomplished by delineating the 
maximum number of personnel by identi- 
fying job titles and the maximum grade or 
salary attached to those titles. The Gen- 
eral Assembly has determined that the 
University of Arkansas for Medical Sci- 
ences could be operated more efficiently if 
some flexibility is given to that institu- 
tion. That flexibility is being accomplished 
by providing a position pool in Subsection 
(a) of this Section and since the General 
Assembly has granted the agency broad 
powers under the growth pool concept, it 
is both necessary and appropriate that the 
General Assembly maintain oversight of 
the utilization of the position pool by re- 
quiring review of the Legislative Council 
or Joint Budget Committee in the utiliza- 
tion of the position pool. Therefore, the 
requirement of review by the Legislative 
Council or Joint Budget Committee is not 
a severable part of this section. If the 
requirement of review by the Legislative 
Council or Joint Budget Committee is 
ruled unconstitutional by a court of com- 
petent jurisdiction, this entire section is 
void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 3 — Higher Education Expenditure Restriction Act 



6-63-314. Extra help restrictions. 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 16, provided: "EMERGENCY GRANTS 
& EXTRA HELP POOL. An Institution of 
higher education that suffers an emer- 
gency/disaster event resulting in all or a 
significant portion of campus operations 
being interrupted, may request disaster 
assistance through the Arkansas Depart- 
ment of Higher Education. Upon the dec- 
laration of an emergency by the Governor, 
the institution may request, subject to the 
recommendation of the Director of the 
Department of Higher Education and ap- 
proval of the Governor, a grant from the 
Disaster Relief Fund to assist in returning 
that campus to operation and/or to a sister 



campus providing services to the students 
from the affected campus. Certified law 
enforcement officers employed by an insti- 
tution of higher education may be granted 
jurisdiction at the sister institution, upon 
agreement of both institutions. 

"The Department of Higher Education 
is authorized a pool of 500 extra help 
positions for use in such emergency situ- 
ations. These positions may be assigned to 
the campus suffering the disaster event or 
to a sister campus providing services to 
the students from the affected campus. 
The Governor may waive the 1,500 hour 
limit of AC A 6-63-314 on these assigned 
extra help pool positions. 



6-64-109 



EDUCATION 



116 



"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

CHAPTER 64 
UNIVERSITY OF ARKANSAS 

Subchapter 1 — General Provisions 

6-64-109. Housing allowance for chaplain. 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 36, provided: "CHAPLAIN HOUSING 
ALLOWANCE. The Chancellor of the Uni- 
versity of Arkansas for Medical Sciences 
may designate up to forty-five percent 
(45%) of the regular gross salary (or sti- 
pend) of a minister or other clergy em- 
ployed as a Chaplain or appointed as a 
Chaplain Resident, as a housing allow- 



ance, to the extent used by the person to 
rent or provide a home, according to the 
guidelines of the Internal Revenue Ser- 
vice Code, Section 107 and the Arkansas 
Code 26-51-404(b)(9). 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 3 — Campuses Established 



6-64-301. Little Rock — Establishment. 



A.C.R.C. Notes. Acts 2012, No. 195, 
§ 6, provided: "SPECIAL ALLOWANCES. 
For the purpose of providing necessary 
allowances for housing and other unusual 
expenses incurred by or in behalf of the 
athletic director, assistant athletic direc- 
tors, head coaches, and assistant coaches 
at the University of Arkansas at Little 
Rock, the Board of Trustees may make 
special allowances available therefor in 
such amounts as the Board of Trustees 
may determine as justified, an equitable 
allowance in view of the unusual and 
exacting duties of said athletic director, 
assistant athletic directors, head coaches, 
and assistant coaches, and for the purpose 
of providing such allowances, the Board of 
Trustees is authorized to expend from the 
auxiliary income of the University of Ar- 
kansas at Little Rock, which is derived 
from athletic event receipts, an amount 
not to exceed twenty thousand dollars 
($20,000) in the aggregate for such pur- 



poses during each fiscal year for the ath- 
letic director and head coaches, and ten 
thousand dollars ($10,000) in the aggre- 
gate for such purposes during each fiscal 
year for the assistant athletic directors 
and assistant coaches. Provided that any 
such allowances shall be in addition to the 
regular salary of such athletic director, 
assistant athletic directors, head coaches 
and assistant coaches, as established 
herein provided that the amount of such 
allowance shall not exceed ten thousand 
dollars ($10,000) per annum for any one 
salaried position. Further, if the special 
allowance funds authorized herein are 
utilized the University of Arkansas at 
Little Rock shall report annually to the 
Legislative Joint Auditing Committee the 
exact disposition of those special allow- 
ances funds. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 4 — Medical Department Generally 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 44, provided: "PSYCHIATRIC RE- 
SEARCH INSTITUTE & DEPARTMENT 



OF PEDIATRICS REPORTS. The Univer- 
sity of Arkansas for Medical Sciences shall 
report quarterly each fiscal year to the 



117 



UNIVERSITY OF ARKANSAS 



6-64-413 



Legislative Council on program activities 
and the expenditure of funds from the 
Psychiatric Research Institute and De- 
partment of Pediatrics appropriation for 
Building Effective Services for Trauma 



programs for children and adolescents. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-64-406. Admissions generally. 

A.C.R.C. Notes. Acts 2012, No. 257, 
§ 35, provided: "ADMISSION POLICY. 
The University of Arkansas for Medical 
Sciences shall admit one hundred fifty 
(150) freshman students in each fiscal 
year into the College of Medicine. Pro- 
vided that no funds shall be expended to 
fund the positions of Chancellor, Dean of 
Medicine and any academic position until 

6-64-413. Special allowances. 

A.C.R.C. Notes. Acts 2012, No. 257, 
§ 27, provided: "SPECIAL ALLOW- 
ANCES — PATIENT CARE & RE- 
SEARCH FACULTY. The Board of Trust- 
ees may make special allowances 
available, in such amounts as the Board 
may determine or justify equitable in view 
of the exacting duties which are involved, 
as a part of the salaries of the physicians, 
dentists, and other professional faculty 
employed by the University of Arkansas 
for Medical Sciences from receipts of pro- 
fessional income in the care of patients 
and/or funds received from federal agen- 
cies, foundations, and other private spon- 
sors in support of research. Provided that 
any such allowance shall not exceed, for 
any employee, an amount equal to two 
and one half (2 & V2) times that portion of 
the salary authorized by the General As- 
sembly to be paid from the University of 
Arkansas Medical Center Fund. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 257, § 28, provided: 
"SPECIAL ALLOWANCES — RECRUIT- 
MENT. The Board of Trustees of the Uni- 
versity of Arkansas is hereby authorized 
to make available to the President of the 
University of Arkansas special allowances 



the Chancellor and Dean of Medicine cer- 
tify to the Arkansas Legislative Council 
that the provision of this Section relating 
to the fiscal year requirement for one 
hundred fifty (150) freshman student ad- 
missions has been implemented. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



in such amounts as the Board may deter- 
mine to be justified at the University of 
Arkansas for Medical Sciences, for the use 
of the Chancellor and his deans, represen- 
tatives, department heads, and directors 
at the University of Arkansas for Medical 
Sciences in recruitment of faculty and 
staff members. Upon approval by the 
President and the Board of Trustees, such 
funds shall be administered by the Chan- 
cellor, who shall assure that the total 
amount expended for such purposes does 
not exceed one hundred fifty thousand 
dollars ($150,000) each fiscal year or so 
much thereof as may be authorized by the 
Board of Trustees. The funds authorized 
by this Section shall come from a source 
other than state tax dollars appropriated 
by the General Assembly or charges made 
to students for tuition, fees, room and 
board, or other purposes. Each year the 
Chancellor shall furnish to the President 
of the University of Arkansas, the Board 
of Trustees, and the Arkansas Legislative 
Joint Auditing Committee a report show- 
ing for each expenditure the date, the 
amount, the names of persons to whom 
the expenditure was made, and the pur- 
pose for which the expenditure was made. 
"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-64-414 



EDUCATION 



118 



6-64-414. Special language and restrictions — Area health edu- 
cation centers. 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 29, provided: "AREA HEALTH EDUCA- 
TION CENTERS — REPORTS. The 
Chancellor at the University of Arkansas 
for Medical Sciences shall make annual 
progress reports of AHEC programs to the 
Governor, the Legislative Council, and 
other interested interim committees of the 
General Assembly regarding the achieve- 



ments, the expansion of the aforemen- 
tioned programs, and amounts expended 
for the Area Health Education Centers. 
The reports shall also include the practice 
locations of the students participating in 
the programs. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-64-420. UAMS — Adult Sickle Cell Disease Program. 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 22, provided: "UAMS — ADULT 
SICKLE CELL DISEASE PROGRAM. 
There is hereby established a new pro- 
gram for the comprehensive care of Adult 
Sickle Cell Disease to be known as the 
University of Arkansas for Medical Sci- 
ences Adult Sickle Cell Disease Program. 
The program will facilitate the continued 
development of adult sickle cell disease 
treatment, preventive care, education, 
and training for health care professionals 



and related personnel utilizing the Uni- 
versity of Arkansas for Medical Sciences' 
Area Health Education Centers through- 
out the State and Center for Distance 
Health. Funding for the Program will be 
from general revenue and cash funds from 
fees for services, donations, grants, and 
federal funds. The University of Arkansas 
for Medical Sciences will not assume re- 
sponsibility for funding the Program until 
such time as the General Assembly appro- 
priates and funds the Program." 



6-64-421. Center for Dental Education, 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 24, provided: "UAMS — CENTER FOR 
DENTAL EDUCATION. There is hereby 
established a new center in Arkansas for 
Dental Education in cooperation with the 
University of Tennessee Dental School, 
the University of Arkansas for Medical 
Sciences and Arkansas Children's Hospi- 
tal. The Center Shall be known as the 
University of Arkansas for Medical Sci- 



ences Center for Dental Education. 

"The Center will facilitate the continued 
development of dental education, its spe- 
cialties and services for the citizens of 
Arkansas. 

"No appropriation is requested at this 
time and UAMS will not assume respon- 
sibility for its funding until such time as 
the General Assembly appropriates and 
funds the Center." 



Subchapter 10 — Finances 



6-64-1004. Athletics Instruction Fund. 



A.C.R.C. Notes. Acts 2012, No. 223, 
§ 22, provided: "ADDITIONAL PAY- 
MENTS AUTHORIZED. The Board of 
Trustees of the University of Arkansas is 
hereby authorized to make additional 
payments to head and assistant coaches 
at the University of Arkansas, Fayette- 
ville, from revenues generated by con- 
tracts with vendors of athletic apparel, 
shoes, multimedia rights, and other prod- 
ucts in such amounts as may be estab- 



lished by the Board of Trustees for perfor- 
mance by the coaches of consulting and 
other obligations pursuant to contracts 
between the University and such vendors. 
Such additional payments to head and 
assistant coaches shall not be considered 
salary and shall not be deemed or con- 
strued to exceed the maximum salaries 
established for such coaches by the Gen- 
eral Assembly. Nothing in this section 
shall be construed to reduce or eliminate 



119 



AGRICULTURAL COLLEGES 



6-65-202 



the authority granted elsewhere in Arkan- 
sas statutes for the payment of allowances 
or bonuses to coaches at the University of 
Arkansas, Fayetteville. 



"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-64-1012. Additional compensation for athletic department, 



A.C.R.C. Notes. Acts 2012, No. 223, 
§ 21, provided: "SPECIAL ALLOW- 
ANCES. For the purpose of providing nec- 
essary allowances for housing and other 
unusual expenses incurred by or on behalf 
of the athletic director, associate and as- 
sistant athletic directors, head coaches, 
assistant coaches, offensive coordinators, 
defensive coordinators, and head trainers 
in the Athletic Department at the Univer- 
sity of Arkansas, Fayetteville, the Board 
of Trustees may make special allowances 
available therefore in such amounts as the 
Board of Trustees may determine as jus- 
tified, an equitable allowance in view of 
the unusual and exacting duties of said 
athletic directors, associate and assistant 
athletic directors, head coaches, assistant 
coaches, offensive coordinators, defensive 
coordinators, and head trainers in the 
Athletic Department at the University of 
Arkansas, Fayetteville, and for the pur- 
pose of providing such allowances, the 
Board of Trustees is authorized to expend 
from the auxiliary income of the Univer- 
sity of Arkansas, Fayetteville, which is 
derived from athletic event receipts, or 
from contributions from sources other 
than state funds, an amount not to exceed 
ten thousand dollars ($10,000) each for 
such purposes during each fiscal year for 
the athletic directors, associate athletic 
directors, and head coaches, and an 
amount not to exceed one thousand dol- 



lars ($1,000) each for the assistant ath- 
letic directors, assistant coaches, offensive 
coordinators, defensive coordinators, and 
head trainers. Any such allowances shall 
be in addition to the regular salary of such 
athletic directors, associate and assistant 
athletic directors, head coaches and assis- 
tant coaches. Further, if the special allow- 
ance funds authorized herein are utilized 
the University of Arkansas, Fayetteville 
shall report annually to the Arkansas Leg- 
islative Joint Auditing Committee the ex- 
act disposition of those special allowance 
funds. In recognition of the extra work 
involved in the participation of intercolle- 
giate athletic teams in post-season compe- 
tition, and to promote exceptional 
achievement in the total sports program, 
the Chancellor of the University of Arkan- 
sas, Fayetteville, in accordance with poli- 
cies issued by the Board of Trustees of the 
University of Arkansas, may approve ad- 
ditional compensation of up to one 
month's salary for the Athletic Depart- 
ment and Band personnel when any ath- 
letic team participates in post-season 
competition or achieves exceptional recog- 
nition, which shall be in addition to the 
regular salaries authorized by law, pro- 
vided that the additional compensation 
shall be paid from contributions from 
sources other than public funds. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 65 
AGRICULTURAL COLLEGES 

Subchapter 2 — Arkansas State University 

6-65-202. Powers and duties of board. 



A.C.R.C. Notes. Acts 2012, No. 221, 
§ 8, provided: "LEASES. Notwithstand- 
ing any law to the contrary, the Board of 
Trustees of Arkansas State University 
may hereafter lease facilities for opera- 



tions for room and board purposes for 
students only in any manner and upon 
terms the board deems to be in the best 
interest of the university. Action taken 
under this act shall be by written resolu- 



6-65-202 



EDUCATION 



120 



tion adopted by at least a majority of the in effect only from July 1, 2012 through 
members of the board. June 30, 2013." 

"The provisions of this section shall be 

Subchapter 3 — Arkansas Tech University 



A.C.R.C. Notes. Acts 2012, No. 194, 
§ 6, provided: "SPECIAL ALLOWANCES. 
The Board of Trustees of Arkansas Tech 
University may make special allowances 
available to any coach who coaches more 
than one sport in an amount not to exceed 
$10,000 per fiscal year for any one coach. 
Further, if the special allowance funds 
authorized herein are utilized, Arkansas 
Tech University shall report annually to 
the Legislative Joint Auditing Committee 
the exact disposition of those special al- 
lowance funds. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 194, § 7, provided: "AR- 
KANSAS TECH INSTITUTE. The Arkan- 
sas Tech Institute (ATI) shall be adminis- 
tered under the direction of Arkansas 



Tech University. Utilizing a multidisci- 
plinary collaboration of professionals, ATI 
shall explore, develop, implement, and 
evaluate new and better ways to integrate 
the teaching, study and performance of 
business, engineering, emergency man- 
agement, and computer sciences for aca- 
demic, economic, and economic develop- 
ment purposes in Arkansas. ATI priorities 
shall include, but are not limited to, eco- 
nomic development, technology develop- 
ment, and 'cyber-park' development. Ar- 
kansas Tech University shall make 
annual reports to the Arkansas Legisla- 
tive Council on all matters of funding, 
existing programs, and services offered 
through ATI. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 4 — Southern Arkansas University 



A.C.R.C. Notes. Acts 2012, No. 197, 
§ 6, provided: "TUITION REIMBURSE- 
MENT. The Board of Trustees of Southern 
Arkansas University shall be authorized 
to reimburse tuition, fees, and other edu- 
cational related expenses of current fac- 
ulty who seek additional education levels 



that will benefit the university in meeting 
accreditation and professional standards. 
Reimbursement shall be authorized only 
when the reimbursement request has 
been documented by the institution to 
meet critical shortage instructional ar- 
eas." 



CHAPTER 66 
HENDERSON STATE UNIVERSITY 



A.C.R.C. Notes. Acts 2012, No. 267, 
§ 5, provided: "SPECIAL ALLOWANCE. 
The Board of Trustees of Henderson State 
University may make special allowances 
available to any coach who coaches more 
than one sport in an amount not to exceed 
$10,000 per fiscal year for any one coach. 
Further, if the special allowance funds 



authorized herein are utilized, Henderson 
State University shall report annually to 
the Legislative Joint Auditing Committee 
the exact disposition of those special al- 
lowance funds. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



121 UNIVERSITY OF CENTRAL ARKANSAS 

CHAPTER 67 
UNIVERSITY OF CENTRAL ARKANSAS 



6-67-113 



A.C.R.C. Notes. Acts 2012, No. 150, 
§ 6, provided: "SPECIAL ALLOWANCE. 
The Board of Trustees of the University of 
Central Arkansas may make special al- 
lowances available to any coach who 
coaches more than one sport in an amount 
not to exceed ten thousand dollars 
($10,000) per fiscal year for any one coach. 
Further, the Board of Trustees of the Uni- 
versity of Central Arkansas is hereby au- 
thorized to make additional payments to 
head coaches at the University of Central 
Arkansas from revenues generated by 
contracts with vendors of athletic apparel, 
shoes and other products in such amounts 
as may be established by the Board of 
Trustees for performance by the coaches of 
consulting and other obligations pursuant 
to contracts between the University and 



such vendors. Such additional payments 
to head coaches shall not be considered 
salary and shall not be deemed or con- 
strued to exceed the maximum salaries 
established for such coaches by the Act. 
Nothing in this section shall be construed 
to reduce or eliminate the authority 
granted elsewhere in Arkansas statutes 
for the payment of allowances or bonuses 
to coaches at the University of Central 
Arkansas. Further, if the special allow- 
ance funds authorized herein are utilized, 
the University of Central Arkansas shall 
report annually to the Legislative Joint 
Auditing Committee the exact disposition 
of those special allowance funds. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-67-112. Limitation of expenditures. 



A.C.R.C. Notes. Acts 2012, No. 150, 
§ 8, provided: "TUITION REIMBURSE- 
MENT. The Board of Trustees of the Uni- 
versity of Central Arkansas shall be au- 
thorized to reimburse tuition, fees, and 
other educational related expenses of cur- 
rent faculty who seek additional educa- 



tion levels that will benefit the university 
in meeting accreditation and professional 
standards. Reimbursement shall be au- 
thorized only when the reimbursement 
request has been documented by the insti- 
tution to meet critical shortage instruc- 
tional areas." 



6-67-113. Payroll deductions. 



A.C.R.C. Notes. Acts 2012, No. 150, 
§ 7, provided: "MEMBERSHIP AUTHO- 
RIZATION. The Board of Trustees of the 
University of Central Arkansas is hereby 
authorized to enact voluntary payroll de- 
ductions for employees using on-campus 
programs and facilities. All such deduc- 
tions shall be entirely voluntary in nature, 
shall require written authorization from 



each participant electing to use such de- 
ductions and shall not be made on a pre- 
tax basis. Nothing in this section shall be 
construed to reduce or eliminate the pay- 
roll regulations established elsewhere in 
Arkansas Statutes. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



6-81-102 



EDUCATION 



122 



SUBTITLE 6. POSTSECONDARY EDUCATION — 
FINANCIAL ASSISTANCE PROGRAMS 

CHAPTER 80 
GENERAL PROVISIONS 



A.C.R.C. Notes. Acts 2012, No. 247, 
§ 26, provided: "FINANCIAL AID PRO- 
GRAMS REPORTING. The Arkansas De- 
partment of Higher Education shall re- 
port by May 30 to the House and Senate 
Interim Committees on Education the 
budgeted allocation for each financial aid 



program funded through the Higher Edu- 
cation Grants Fund Account for the up- 
coming fiscal year and projections for the 
following year. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 81 
STUDENT LOANS 



Subchapter 1 — General Provisions 

6-81-102. Arkansas Student Loan Authority — Powers and du- 
ties. 



A.C.R.C. Notes. Acts 2012, No. 96, § 3, 
provided: "TRANSFER OF CONTRACT 
EMPLOYEE SALARIES. Any individual 
employed through Edfinancial Services 
LLC and who is a contract worker with 
the Arkansas Student Loan Authority 
without a break in service as denned by 
the State of Arkansas, shall be eligible to 



transfer their annual salary, as denned in 
the contractual agreement with the Ar- 
kansas Student Loan Authority, upon the 
date of transfer. Effective upon the date of 
transfer, the individual shall become an 
employee of the State of Arkansas gov- 
erned by all applicable rules and regula- 
tions of the State of Arkansas." 



Subchapter 7 — Rural Medical Practice Student Loans and 

Scholarships 

6-81-715. Medical school graduates — Community match con- 
tract — Eligibility for community match loans. 

CASE NOTES 



Analysis 

Defenses. 
Standing. 

Defenses. 

In a breach of contract action by the 
Arkansas Rural Medical Practice Student 
Loan and Scholarship Board, a doctor was 



entitled to assert common law breach of 
contract defenses because §§ 6-81-715 to 
6-81-717 did not reveal a clear expression 
of legislative intent to deprive community- 
match-scholarship recipients of the ability 
to assert common-law claims and de- 
fenses. Nelson v. Ark. Rural Med. Practice 
Loan & Scholarship Bd., 2011 Ark. 491, — 
S.W.3d — (2011). 



123 BOARDS OF ELECTION COMMISSIONERS, ETC. 7-4-101 

Standing. der §§ 6-81-715 to 6-81-717, because the 
Doctor who had allowed his Arkansas Declaratory Judgment Statute, § 16- Ill- 
medical license to lapse did not have 101 et seq., was applicable only where 
standing to obtain a judgment declaring there was a present actual controversy, 
that § 17-95-409(b) did not apply to con- Nelson v. Ark. Rural Med. Practice Loan & 
tracts under the Community Match Loan Scholarship Bd., 2011 Ark. 491, — S.W.3d 
and Scholarship Program, established un- — (2011). 

CHAPTER 82 
SCHOLARSHIPS 

Subchapter 15 — Arkansas Geographical Critical Needs Minority 
Teacher Scholarship Program 

A.C.R.C. Notes. Acts 2012, No. 247, Upon receiving such certification, the 

§ 37, provided: "APPROPRIATION Chief Fiscal Officer of the State and the 

TRANSFER PROCEDURES — AR GEO- State Treasurer shall cause to be trans- 

GRAPHICAL CRITICAL NEEDS MI- f er red the necessary funds and appropria- 

NORITY TEACHER SCHOLARSHIP tion to the fund account of the University 

PROGRAM. The Director of the Arkansas of Arkansas at Pine Bluff for implementa- 

Department of Higher Education shall tion of ^ m> The Univers ity of 

determine the amount available, up to A , , «. «, „ . 

$200,000 per fiscal year, to fund the Ar- Arkansas at Pine Bluff may use up to 

kansas Geographical Critical Needs Mi- twent y P ercen * < 2( W of the funds and 

nority Teacher Scholarships and shall cer- appropriation for administration of the 

tify to the Chief Fiscal Officer of the State program. 

and the State Treasurer such amount as is "The provisions of this section shall be 

required to be transferred from the in effect only from July 1, 2012 through 

Higher Education Grants Fund Account. June 30, 2013." 

TITLE 7 
ELECTIONS 

CHAPTER 4 

BOARDS OF ELECTION COMMISSIONERS AND OTHER 
ELECTION OFFICERS 

Subchapter 1 — General Provisions 



7-4-101. State Board of Election Commissioners — Members — 
Officers — Meetings. 

A.C.R.C. Notes. Acts 2012, No. 54, § 7, general primary election, nonpartisan ju- 

provided: "TRANSFER OF FUNDS. If the dicial general election, statewide special 

State Board of Election Commissioners is election or special primary election and 

required to pay the expenses for any state funds are not available to pay for such 

supported preferential primary election, elections, the Director of the State Board 



7-5-106 ELECTIONS 124 

of Election Commissioners shall certify to the Budget Stabilization Trust Fund at 

the Chief Fiscal Officer of the State the the end of each fiscal year. The Chief 

amount needed to pay the expenses of the Fiscal Officer of the State shall initiate the 

election(s). Upon the approval of the Chief necessary transfer documents to reflect all 

Fiscal Officer of the State, the amount sucn transfers upon the fiscal records of 

certified shall be transferred from the the State Auditor, the State Treasurer and 

Budget Stabilization Trust Fund to the the Chief Fiscal Officer of the State. 

Miscellaneous Agencies Fund Account of « The provisions of this section shall be 



the State Board of Election Commission- 
ers. All unused funds transferred under 
this provision shall be transferred back to 



in effect from July 1, 2012 through June 
30, 2013." 



CHAPTER 5 
ELECTION PROCEDURE GENERALLY 

Subchapter 1 — General Provisions 

7-5-106. Runoff elections for county and municipal officers. 

RESEARCH REFERENCES 

ALR. Validity of Runoff Voting Election 
Methodology. 67 A.L.R.6th 609. 

Subchapter 2 — Preelection Proceedings 

7-5-201. Voter qualification. 

RESEARCH REFERENCES 

ALR. Validity of Statute Limiting Time Validity of Residency and Precinct-Spe- 
Period for Voter Registration. 56 cific Requirements of State Voter Regis- 
A.L.R.6th 523. tration Statutes. 57 A.L.R.6th 419. 

7-5-207. Ballots — Names included — Draw for ballot position. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- utes and Ordinances Concerning Estab- 

cation of State Statutory Limitations Pe- lishment of Residency, as Condition for 

riods Governing Election Contests. 60 Running for Municipal Office. 74 

A.L.R.6th 481. A.L.R.6th 209. 

Construction and Application of Stat- 



125 CAMPAIGN PRACTICES 7-6-203 

Subchapter 6 — Paper Ballots and Electronic Vote Tabulating 

Devices 

7-5-601. Paper ballots — Form. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- United States Senate on Ballot. 59 
cation of State Requirements for Place- A.L.R.6th 111. 
ment of Independent Candidates for 

Subchapter 7 — Returns and Canvass 

7-5-703. Votes for United States Congress — Tie vote. 

RESEARCH REFERENCES 

ALR. Validity of Runoff Voting Election 
Methodology. 67 A.L.R.6th 609. 

7-5-704. Votes for legislative, judicial, and executive officers — 
Tie vote. 

RESEARCH REFERENCES 

ALR. Validity of Runoff Voting Election 
Methodology. 67 A.L.R.6th 609. 

Subchapter 8 — Election Contests 

7-5-801. Right of action — Procedure. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- riods Governing Election Contests. 60 
cation of State Statutory Limitations Pe- A.L.R.6th 481. 

CHAPTER 6 
CAMPAIGN PRACTICES 

Subchapter 2 — Campaign Financing 

7-6-203. Contributions — Limitations — Acceptance or solicita- 
tion — Use as personal income — Disposition. 

RESEARCH REFERENCES 

ALR. Construction and Application of U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753, 
Supreme Court's Holding in Citizens 2010 U.S. LEXIS 766, 187 L.R.R.M. 
United v. Federal Election Com'n, 558 (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 



7-6-205 ELECTIONS 126 

(2010), That Government May Not Pro- Constitutional Challenges to Compelled 

hibit Independent and Indirect Corporate Speech — Particular Situations or Cir- 

Expenditures on Political Speech. 65 cumstances. 73 A.L.R.6th 281. 
A.L.R.6th 503. 

7-6-205. Contributions made indirectly, anonymously, or under 
assumed names. 

RESEARCH REFERENCES 

ALR. Construction and Application of (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 

Supreme Court's Holding in Citizens (2010), That Government May Not Pro- 

United v. Federal Election Com'n, 558 hibit Independent and Indirect Corporate 

U.S. 310, 130S. Ct. 876, 175 L.Ed. 2d 753, Expenditures on Political Speech. 65 

2010 U.S. LEXIS 766, 187 L.R.R.M. A.L.R.6th 503. 

CHAPTER 7 
NOMINATIONS AND PRIMARY ELECTIONS 

Subchapter 1 — Methods of Nomination 

7-7-101. Selection of nominees. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- United States Senate on Ballot. 59 
cation of State Requirements for Place- A.L.R.6th 111. 
ment of Independent Candidates for 

7-7-103. Filing as an independent — Petitions — Disqualifica- 
tion. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- United States Senate on Ballot. 59 
cation of State Requirements for Place- A.L.R.6th 111. 
ment of Independent Candidates for 

CHAPTER 8 
FEDERAL ELECTIONS 

Subchapter 1 — General Provisions 

7-8-104. Filling vacancies in the House of Representatives. 

RESEARCH REFERENCES 

ALR. Construction and Application of Const. Art. I, § 2, cl. 4, and State Provi- 
Vacancies in House of Representatives sions Concerning Such Elections. 62 
Clause of United States Constitution, U.S. A.L.R.6th 143. 



127 



INITIATIVES, REFERENDA, ETC. 

CHAPTER 9 



7-9-111 



INITIATIVES, REFERENDA, AND CONSTITUTIONAL 

AMENDMENTS 

Subchapter 1 — Petition and Election Procedure 

7-9-104. Form of initiative petition — Sufficiency of signatures. 

CASE NOTES 



Sufficiency of Petition. 

Because the initiative sponsors' revised 
ballot title was something clearly differ- 
ent than the original ballot title, no signa- 
ture collected under the former title may 
support certification of the revised ballot 



title under Ark. Const. Amend. 7, § 7-9- 
106(a), or subsection (a) of this section; the 
Secretary of State's certification was va- 
cated and any votes cast could not be 
counted. Walmsley v. Martin, 2012 Ark. 
370, — S.W.3d — (2012). 



7-9-106. Required attachments to petitions. 

CASE NOTES 



In General. 

Because the initiative sponsors' revised 
ballot title was something clearly differ- 
ent than the original ballot title, no signa- 
ture collected under the former title may 
support certification of the revised ballot 



title under Ark. Const. Amend. 7, subsec- 
tion (a) of this section, or § 7-9- 104(a); the 
Secretary of State's certification was va- 
cated and any votes cast could not be 
counted. Walmsley v. Martin, 2012 Ark. 
370, — S.W.3d — (2012). 



7-9-111. Determination of sufficiency of petition — Corrections. 



CASE NOTES 



Analysis 



Construction. 
Purpose. 

Construction. 

Pursuant to the enabling legislation, 
this section and §§ 7-9-125(8), 7-9- 
402(2)(A)(9), that the corporation as spon- 
sor had standing to invoke the Arkansas 
Supreme Court's jurisdiction. Ark. Hotels 
& Entm't, Inc. v. Martin, 2012 Ark. 335, — 
S.W.3d — (2012). 

Purpose. 

Under Ark. Const. Art. 5, § 1, Amend. 7 
and subsection (d) of this section, a peti- 



tion had to on its face contain, at the time 
of the filing, the required signatures, and 
in order to qualify for additional time, the 
petition had to contain a sufficient num- 
ber of signatures pursuant to the state- 
wide and county-wide requirement, before 
the thirty-day provision to correct defi- 
ciencies applied; the corporation failed to 
provide the court with any evidence of the 
validity of its petition. Ark. Hotels & 
Entm't, Inc. v. Martin, 2012 Ark. 335, — 
S.W.3d — (2012). 



7-9-125 ENVIRONMENTAL LAW 128 

7-9-125. Definitions — Prohibition of profit — Penalties — Free- 
dom of information. 

CASE NOTES 

Standing. as sponsor had standing to invoke the 

Pursuant to the enabling legislation, Arkansas Supreme Court's jurisdiction, 

subdivision (8) of this section and §§ 7-9- Ark. Hotels & Entm't, Inc. v. Martin, 2012 

111, 7-9-402(2)(A)(9), that the corporation Ark. 335, — S.W.3d — (2012). 

Subchapter 4 — Disclosure for Matters Referred to Voters 

7-9-402. Definitions. 

CASE NOTES 

Standing. tion as sponsor had standing to invoke the 

Pursuant to the enabling legislation, Arkansas Supreme Court's jurisdiction. 

§§ 7-9-111, 7-9-125(8), and subdivision Ark. Hotels & Entm't, Inc. v. Martin, 2012 

(2)(A)(9) of this section, that the corpora- Ark. 335, — S.W.3d — (2012). 

TITLE 8 
ENVIRONMENTAL LAW 

CHAPTER. 

6. DISPOSAL OF SOLID WASTES AND OTHER REFUSE. 

CHAPTER 1 
GENERAL PROVISIONS 

Subchapter 1 — General Provisions 

8-1-103. Powers and duties. 

A.C.R.C. Notes. Acts 2012, No. 274, "c) Description of each environmental 

§ 37, provided: "REPORTING REQUIRE- permit application pending in each envi- 

MENTS. The Department shall present ronmental permit category, the number of 

the following data to Legislative Council days each permit has been pending, and 

quarterly, due by the 15th day of the the reasons for delays in issuing permits 

month following the quarter, beginning for each permit that has been pending for 

July 15, 2012: more than 45 days; 

"a) Number and type of environmental "d) Number and type of enforcement ac- 

permits currently authorized by the De- tions initiated by the Department, the 

partment and the Pollution Control and geographic location of each violation and 

Ecology Commission in each environmen- the total fines and collections from 

tal permit category; Supplemental Environmental Projects, 

"b) Total funds collected from permit fees the percent increase or decrease in fines 

for each permit category and the percent levied annually and 

increase or decrease in permit fees annu- "e) Description of all pending rulemaking 

ally; activities and justifications thereof, in- 



129 



DISPOSAL OF SOLID WASTES AND OTHER REFUSE 



8-6-607 



eluding economic impact and environmen- 
tal benefit analysis. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 274, § 42, provided: 
"FAYETTEVILLE SHALE QUARTERLY 
REPORTING. The Arkansas Department 
of Environmental Quality shall report on 
a quarterly basis to the Arkansas Legisla- 
tive Council or the Joint Budget Commit- 



tee the number of inspections, any hear- 
ings, findings, orders, fines, or other 
agency regulatory or enforcement actions 
or activities involving the Fayetteville 
Shale. The quarterly reports shall be pro- 
vided no later than the 15th day of the 
month immediately following the end of 
each quarter. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 6 
DISPOSAL OF SOLID WASTES AND OTHER REFUSE 

subchapter. 
6. Solid Waste Management and Recycling Fund Act. 

Subchapter 6 — Solid Waste Management and Recycling Fund Act 



SECTION. 

8-6-607. Collection of fees. 



Effective Dates. Acts 2012, No. 283, 
§ 15: July 1, 2012. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly, that the Constitution 
of the State of Arkansas prohibits the 
appropriation of funds for more than a one 
(1) year period; that the effectiveness of 
this Act on July 1, 2012 is essential to the 
operation of the agency for which the 
appropriations in this Act are provided, 
and that in the event of an extension of 



the legislative session, the delay in the 
effective date of this Act beyond July 1, 
2012 could work irreparable harm upon 
the proper administration and provision 
of essential governmental programs. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after July 1, 
2012." 



8-6-607. Collection of fees. 

Fees imposed under the separate provisions of this subchapter shall 
be collected as follows: 

(1) Each landfill permittee and each transporter shall submit to the 
Arkansas Department of Environmental Quality on or before January 
15, April 15, July 15, and October 15 of each year a quarterly report that 
accurately states the total weight or volume of solid waste received at 
the landfill or transported out of state during the quarter just com- 
pleted; 

(2) On or before January 15, April 15, July 15, and October 15 of each 
year, each landfill permittee and solid waste transporter shall pay to 
the department the full amount of disposal fees due for the quarter just 
completed; 



9-2-101 FAMILY LAW 130 

(3) Except as provided in subdivisions (4) and (5) of this section, the 
disposal and transportation fees collected under this section shall be 
special revenues and shall be deposited in the State Treasury to the 
credit of the Solid Waste Management and Recycling Fund for admin- 
istrative support of the State Marketing Board for Recyclables; 

(4)(A) Twenty-five percent (25%) of the disposal fees collected from 
landfills where a private industry bears the expense of operating and 
maintaining the landfill solely for the disposal of wastes generated by 
the industry shall be deposited into a special fund to be created on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State and to be known as the "Marketing Board 
Fund". 

(B) The Marketing Board Fund shall be administered by the 
department and used by the board for the administration and 
performance of the board's duties; and 

(5) Beginning July 1, 2012, excluding the disposal fees that are to be 
deposited into the Marketing Board Fund under subdivision (4) of this 
section, the first one hundred twenty-five thousand dollars ($125,000) 
of the fees collected each fiscal year under this section shall be deposited 
into the State Treasury and credited to the Crime Information System 
Fund to be used exclusively for the scrap metal log book program. 

History. Acts 1989, No. 849, § 7; 1989, substituted "under" for "pursuant to" in 

No. 934, § 7; 1991, No. 755, § 2; 1993, No. the introductory language and in (3); sub- 

1127, § 3; 1995, No. 511, § 2; 2012, No. stituted "subdivisions (4) and (5)" for "sub- 

283, § 10. division (4)" in (3); and added (5). 

Amendments. The 2012 amendment 

TITLE 9 
FAMILY LAW 

SUBTITLE 1. GENERAL PROVISIONS 

CHAPTER 2 
CHANGE OF NAME 

9-2-101. Name change — Procedure. 

CASE NOTES 

Contest. ther had not made any serious attempts at 

Because a child might encounter diffi- visiting the child, it was in the child's best 

culties, harassment, or embarrassment interests to change the child's surname. 

from bearing the father's surname (since Walker v. Burton, 2011 Ark. App. 439, — 

the father was incarcerated in relation to S.W.3d (2011). 

the mother's death), and because the fa- 



131 



ADOPTION 9-9-206 

SUBTITLE 2. DOMESTIC RELATIONS 



CHAPTER 9 
ADOPTION 

Subchapter 2 — Revised Uniform Adoption Act 



9-9-204. Who may adopt. 

RESEARCH REFERENCES 

ALR. Adoption of Child by Same-Sex 
Partners. 61 A.L.R.6th 1. 

9-9-206. Persons required to consent to adoption — Consider- 
ation for relinquishing minor for adoption. 



CASE NOTES 



Analysis 



Application. 

Parents. 

Refusal to Consent. 

Application. 

It was not erroneous for a trial court to 
terminate a mother's parental rights to 
the mother's children without obtaining 
the children's consent, under subdivision 
(a)(5) of this section, to the children's 
adoption because (1) the issue was first 
raised on appeal, and (2) the statute did 
not apply to termination proceedings in 
dependency-neglect cases. Brabon v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 2, 
— S.W.3d — (2012). 

Court properly denied appellants' peti- 
tion for adoption because the state, the 
child's legal guardian, did not consent; 
additionally, the child had to repeat a 
grade while residing with appellants, and 
the child's personality, behavior, and per- 
formance at school improved following her 
removal from appellants' home. The court 
found that the adoptive parent placed and 
would place an emphasis on meeting the 
child's educational needs, that she was 



devoted to the child, and that she had a 
loving and appropriate home. Cowan v. 
Ark. Dep't of Human Servs., 2012 Ark. 
App. 576, — S.W.3d — (2012). 

Parents. 

Trial court erred in granting a petition 
for adoption and in holding that the puta- 
tive father's consent was not required be- 
cause the birth mother clearly thwarted 
the father's efforts to comply with subdi- 
vision (a)(2) of this section; the father not 
only filed with the putative-father regis- 
tries in four states but also filed paternity 
actions in both Texas and Arkansas. In re 
Baby Boy B., 2012 Ark. 92, — S.W.3d — 
(2012). 

Refusal to Consent. 

Evidence did not support a finding that 
the Arkansas Department of Human Ser- 
vices (DHS) unreasonably withheld its 
consent to appellants' adoption of a child 
under subdivision (a)(3) of this section; 
appellants' adult son lived in their home 
and an uncle lived in substandard housing 
on the property without DHS's knowledge 
while appellants were foster parents. 
Lewis v. Ark. Dep't of Human Servs., 2012 
Ark. App. 347, — S.W.3d — (2012). 



9-9-207 



FAMILY LAW 



132 



9-9-207. Persons as to whom consent not required. 

CASE NOTES 



Analysis 

Consent Required. 

Failure to Communicate or Support. 

Proof. 

Unreasonable Withholding of Consent. 

Consent Required. 

Court properly denied appellants' peti- 
tion for adoption because the state, the 
child's legal guardian, did not consent; 
additionally, the child had to repeat a 
grade while residing with appellants, and 
the child's personality, behavior, and per- 
formance at school improved following her 
removal from appellants' home. The court 
found that the adoptive parent placed and 
would place an emphasis on meeting the 
child's educational needs, that she was 
devoted to the child, and that she had a 
loving and appropriate home. Cowan v. 
Ark. Dep't of Human Servs., 2012 Ark. 
App. 576, — S.W3d — (2012). 

Failure to Communicate or Support. 

Because a father failed to provide child 
support for only nine months, his consent 
was required for adoption of the child 
under subdivision (a)(2) of this section. 
Havard v. Clark, 2011 Ark. App. 734, — 
S.W.3d — (2011). 

Trial court did not err under subdivision 
(a)(2) of this section in granting the adop- 
tion of a child without the mother's con- 
sent because the mother failed signifi- 
cantly without justifiable cause to support 
the child for one year; she had not paid 
any support in several years. She made no 



effort to contribute to the child's support 
even after she obtained a job. Lucas v. 
Jones, 2012 Ark. 365, — S.W.3d — (2012). 
It is not required that a parent fail 
"totally" in their obligations in order to 
fail "significantly" within the meaning of 
subdivision (a)(2) of this section. It only 
means that the failure must be signifi- 
cant, as contrasted with an insignificant 
failure. Lucas v. Jones, 2012 Ark. 365, — 
S.W.3d — (2012). 

Proof. 

In granting a petition for a mother's 
husband to adopt the parties' child, a trial 
court did not err in finding that the fa- 
ther's consent was not necessary under 
subdivision (a)(2) of this section because, 
by the father's own testimony, he had not 
seen his child in over two years; he made 
no child support payments after being 
released from prison until he received the 
adoption petition. Courtney v. Ward, 2012 
Ark. App. 148, — S.W.3d — (2012). 

Unreasonable Withholding of Con- 
sent. 

Evidence did not support a finding that 
the Arkansas Department of Human Ser- 
vices (DHS) unreasonably withheld its 
consent to appellants' adoption of a child 
under subdivision (a)(8) of this section; 
appellants' adult son lived in their home 
and an uncle lived in substandard housing 
on the property without DHS's knowledge 
while appellants were foster parents. 
Lewis v. Ark. Dep't of Human Servs., 2012 
Ark. App. 347, — S.W.3d — (2012). 



9-9-214. Appearance — Continuance — Disposition of petition. 



CASE NOTES 



Best Interest of the Child. 

Trial court did not err under subsection 
(c) of this section in denying a stepmoth- 
er's adoption petition because the adop- 
tion would not be conducive to fostering a 
relationship between the child and the 
child's deceased mother's family; the loss 
of that relationship would not be in the 
child's best interest. Pippinger v. Benson, 
2011 Ark. App. 442, — S.W.3d — (2011). 



Trial court did not err under subsection 
(d) of this section in dismissing appellants' 
petition for adoption of a child for whom 
they had been foster parents because their 
adult son lived in their home and an uncle 
lived in substandard housing on the prop- 
erty without the knowledge of the Arkan- 
sas Department of Human Services. 
Lewis v. Ark. Dep't of Human Servs., 2012 
Ark. App. 347, — S.W.3d — (2012). 



133 PATERNITY 9-10-104 

9-9-216. Appeal from and validation of adoption decree. 

CASE NOTES 



Analysis 

Fraud. 

Limitation of Actions. 

Fraud. 

Where a mother of minor children al- 
leged that she consented to adoption of 
her children by her former husband's sec- 
ond wife due to fraud, duress, and intimi- 
dation, the trial court had jurisdiction to 
hear her petition to set aside the inter- 
locutory adoption decree pursuant to this 
section; the 90-day limitation in Ark. R. 
Civ. P. 60 was inapplicable based on the 



finding of fraud. Smith v. Smith, 2012 Ark. 
App. 6, — S.W.3d — (2012). 

Limitation of Actions. 

Trial court did not err in finding that a 
mother's petition to set aside the inter- 
locutory adoption decree with respect to 
her minor children was not barred by the 
one-year limitation period in this section, 
as the action was commenced within that 
time period; once the action was com- 
menced, the limitation period was tolled. 
Smith v. Smith, 2012 Ark. App. 6, — 
S.W.3d — (2012). 



9-9-220. Relinquishment and termination of parent and child 
relationship. 



CASE NOTES 



Custody. 

Trial court did not err in terminating a 
father's parental rights to his child after 
his wife gave the baby up for adoption 
because the father did not have custody 
within the meaning of subdivision (c)(3) of 



this section, due to his frequently living 
with his parents rather than his wife and 
his failure to support or even see the baby. 
D.L.R. v. N.K., 2012 Ark. App. 316, — 
S.W.3d — (2012). 



CHAPTER 10 
PATERNITY 

Subchapter 1 — General Provisions 

9-10-104. Suit to determine paternity of child born outside of 
marriage. 

CASE NOTES 



Defenses. 

Adult child's complaint against her al- 
leged father's estate to establish paternity 
under this section was barred by res judi- 
cata based on her mother's bastardy ac- 
tion brought under former § 34-702 in 



1980, although the child did not seek child 
support, and the prior action was dis- 
missed for the mother's failure to appear 
at a hearing. Mathis v. Estate of McSpad- 
den, 2012 Ark. App. 599, — S.W.3d — , 
2012 Ark. App. LEXIS 706 (Oct. 24, 2012). 



9-10-108 



FAMILY LAW 



134 



9-10-108. Paternity test. 



CASE NOTES 



Genetic Testing. 

Motion seeking genetic testing under 
subdivision (a)(1) of this section was prop- 
erly denied because there was a signed 
and filed acknowledgement of paternity, 
which had not been rescinded. The legal 



father had no need to establish paternity, 
and the testing requirements under sub- 
division (a)(1) were not applicable. Madi- 
son v. Osburn, 2012 Ark. App. 212, — 
S.W.3d — (2012). 



9-10-114. Visitation rights of father. 

CASE NOTES 



Conditional Visitation. 

Trial court did not err by conditioning 
visitation upon the payment of back child 
support because there was little financial 
support provided, and visitation with a 
child was sporadic. There was nothing 



preventing the father from establishing a 
relationship with the child and petitioning 
for a modification later. Madison v. Os- 
burn, 2012 Ark. App. 212, — S.W.3d — 
(2012). 



9-10-115. Modification of orders or judgments. 

CASE NOTES 



Analysis 

Paternity Testing. 

Recission of Acknowledgement. 

Paternity Testing. 

Where a default judgment was entered 
in paternity proceedings and the adjudi- 
cated father's support obligation was es- 
tablished in 1995, where the Office of 
Child Support Enforcement (OCSE) insti- 
tuted proceedings in 2005 to recover sup- 
port arrearages, and where the adjudi- 
cated father requested a paternity test, 
the circuit court erred in granting the 
father's motion because the father's mo- 
tion was untimely in that subdivision 
(e)(1)(A) of this section allowed an adjudi- 
cated father one paternity test during any 
time period in which he was required to 
pay child support and the father's child 
support obligation terminated under §' 9- 
14-237 when the child reached the age of 
majority. State v. Perry, 2012 Ark. 106, — 
S.W.3d — (2012). 

Subdivision (e)(1)(A) of this section pro- 
vides that an adjudicated father is en- 
titled to one paternity test at any time 



during the period of time that he is re- 
quired to pay child support, and the period 
of time in which a non-custodial parent is 
obligated to pay child support automati- 
cally terminates upon the child's 18th 
birthday pursuant to § 9-14- 
237(a)(l)(A)(i). Thus, the period that a 
father is required to pay child support 
ends when the child turns 18; likewise, 
the period of time in which the father can 
seek a paternity test also ends when the 
child turns 18. State v. Perry, 2012 Ark. 
106, — S.W.3d — (2012). 

Recission of Acknowledgement. 

Rescission of an acknowledgement of 
paternity was not permissible because 
there was no showing of fraud or material 
mistake of fact; no fraud was perpetrated 
because the mother signed the acknowl- 
edgement even knowing that the person 
named was not the father. There was no 
mistake of fact either because the parties 
signed the acknowledgement knowing 
that the person named was either not the 
father or there was a chance he was not 
the father. Madison v. Osburn, 2012 Ark. 
App. 212, — S.W.3d — (2012). 



135 



DIVORCE AND ANNULMENT 



9-12-306 



9-10-120. Effect of acknowledgment of paternity. 

CASE NOTES 



Rescission. 

Rescission of an acknowledgement of 
paternity was not permissible because 
there was no showing of fraud or material 
mistake of fact; no fraud was perpetrated 
because the mother signed the acknowl- 
edgement even knowing that the person 



named was not the father. There was no 
mistake of fact either because the parties 
signed the acknowledgement knowing 
that the person named was either not the 
father or there was a chance he was not 
the father. Madison v. Osburn, 2012 Ark. 
App. 212, — S.W.3d — (2012). 



CHAPTER 12 
DIVORCE AND ANNULMENT 

Subchapter 3 — Actions for Divorce or Alimony 

9-12-301. Grounds for divorce. 

CASE NOTES 



Indignities. 

Trial court erred in granting a divorce to 
a wife on grounds of general indignities 
under subdivision (b)(3)(C) of this section 
because the wife's basis for seeking a 
divorce on that ground was the husband's 
affair with another woman, and adultery 
was a separate ground for divorce under 
subdivision (b)(4), but the wife never pled 
the ground of adultery; even if an adulter- 
ous affair could fall under the category of 
general indignities, the wife offered no 



corroboration of the affair. Coker v. Coker, 
2011 Ark. App. 752, — S.W.3d — (2011). 

Circuit court did not err by awarding 
the wife a divorce based on the ground of 
indignities under subdivision (b)(3)(C) of 
this section, because the wife offered evi- 
dence of her husband's ongoing affair, 
rudeness, unmerited reproach, and stud- 
ied neglect that amounted to "settled 
hate" rendering her condition in life intol- 
erable. Coker v. Coker, 2012 Ark. 383, — 
S.W.3d — (2012). 



9-12-306. Corroboration. 



CASE NOTES 



Contested Cases. 

Circuit court did not err by awarding 
the wife a divorce based on the ground of 
indignities under § 9-12-301(b)(3)(C), be- 
cause the wife offered evidence of her 
husband's ongoing affair, rudeness, un- 
merited reproach, and studied neglect 
that amounted to "settled hate" rendering 
her condition in life intolerable. Evidence 
of his indignities was corroborated under 



this section by her mother who indicated 
that her husband was rude, inattentive, 
and did not care about her; additionally, 
his misuse of marital funds, purchase of 
diamonds, and hotel bills provided some 
inference that he was engaged in studied 
neglect, open insult, and alienation and 
estrangement. Coker v. Coker, 2012 Ark. 
383, — S.W.3d — (2012). 



9-12-309 FAMILY LAW 

9-12-309. Maintenance and attorney's fees — Interest. 

CASE NOTES 



136 



Analysis 

Attorney's Fees. 
Showing of Merit. 

Attorney's Fees. 

Where the wife was granted a divorce 
based on indignities, the circuit court 
abused its discretion by awarding her 
$11,376.12 in attorney's fees under this 
section because she did not file an affida- 
vit for attorney's fees, she failed to men- 
tion the requested expenses in the decree, 



and the amount awarded was in excess of 
the amount sought. Coker v. Coker, 2012 
Ark. 383, — S.W3d — (2012). 

Showing of Merit. 

Trial court did not err under subdivision 
(a)(2) of this section in awarding attorney 
fees to a wife in a divorce action because 
the husband stood in a greater financial 
position than the wife. Delgado v. Del- 
gado, 2012 Ark. App. 100, — S.W.3d — 
(2012). 



9-12-312. Alimony — Child support — Bond — Method of pay- 
ment. 

CASE NOTES 



Analysis 

Alimony. 
Child Support. 
Compliance. 

Alimony. 

Nothing in subdivision (a)(1) of this 
section or applicable case law requires a 
spouse to attempt to obtain public housing 
before a trial court may award alimony. 
Stuart v. Stuart, 2012 Ark. App. 458, — 
S.W3d — (2012). 

In a divorce decree, the trial court did 
not abuse its discretion in awarding $642 
per month to the wife in permanent ali- 
mony under subdivision (a)(1) of this sec- 
tion. The trial court considered the appro- 
priate factors and observed that while the 
husband's income was $2440 per month, 
the wife's income was $440 per month; the 
court also noted that the wife did not work 
outside the home during the nineteen- 
year marriage. Stuart v. Stuart, 2012 Ark. 
App. 458, — S.W3d — (2012). 



Child Support. 

Because the trial court failed to include 
Social Security disability payments paid 
on the child's behalf as income, and failed 
to reference the support chart, as required 
by subdivision (a)(2) of this section, the 
child support award was remand for re- 
consideration. Szabo v. Womack, 2011 
Ark. App. 664, — S.W3d — (2011). 

Compliance. 

Trial court was permitted to modify a 
divorce decree beyond the expiration of 
ninety days because Ark. R. Civ. P. 60 was 
not applicable as the second order merely 
corrected an oversight in the divorce de- 
cree and clarified: (1) the date alimony 
previously awarded under subdivision 
(a)(1) of this section would begin; (2) that 
the Social Security Administration would 
withhold the payments from the hus- 
band's social security disability payments; 
and (3) that alimony payments would con- 
tinue until remarriage or an appellate 
ruling. Stuart v. Stuart, 2012 Ark. App. 
458, — S.W.3d — (2012). 



137 



DIVORCE AND ANNULMENT 



9-12-315 



9-12-313. Enforcement of separation agreements and decrees of 
court. 

CASE NOTES 



Analysis 

Agreements Between Parties. 
Jurisdiction. 

Agreements Between Parties. 

In a divorce case, the court erred by 
ordering the husband to pay a lump sum 
in monthly installments because it re- 
sulted in an impermissible modification of 
the parties' property settlement agree- 
ment; the fact that the husband entered 
into an agreement that later appeared 
improvident was no ground for relief. 



Tiner v. Tiner, 2012 Ark. App. 483, — 
S.W.3d — (2012). 

Jurisdiction. 

Pursuant to parties' property-settle- 
ment agreement, which was incorporated 
into their divorce decree, as the husband 
agreed to retire the debts of the parties' 
businesses, a court had authority to sim- 
ply enforce its own decree along with the 
performance of the written agreement 
pursuant to this section. French v. French, 
2011 Ark. App. 612, — S.W.3d — (2011). 



9-12-314. Modification of allowance for alimony and mainte- 
nance — Child support. 

CASE NOTES 



Failure to Modify. 

Court affirmed the trial court's order 
concerning the support of appellant's mi- 
nor child because appellant's assertion 
that she was entitled to interest under 
§ 9-14-233 and to attorney fees was 
barred by res judicata, and res judicata 



also barred relitigation of the child-sup- 
port arrearage issue as the question had 
already been reduced to judgment by the 
trial court's original support order under 
this section and 9-14-234. Williams v. Nes- 
bitt, 2012 Ark. App. 408, — S.W.3d — 
(2012). 



9-12-315. Division of property. 

CASE NOTES 



Analysis 

Construction. 
Adequacy of Division. 
Marital Property. 
Standard of Review. 
Unequal Division. 

Construction. 

Court did not abuse its discretion in 
refusing to reopen the record or in denying 
the motion for new trial, because while 
subdivision (a)(1) of this section required 
that property be valued at the time of the 
divorce, it did not require the trial court to 
reopen the record or set aside a decree and 
hold an additional hearing for the purpose 
of receiving the most up-to-date evidence. 



Dew v. Dew, 2012 Ark. App. 122, 
— (2012). 



S.W.3d 



Adequacy of Division. 

Trial court did not clearly err in failing 
to make an unequal division of the equity 
in the divorcing parties' house due to a 
home equity loan that was received al- 
most a year before the parties separated 
pursuant to this section, as the wife pro- 
vided testimony that the money had al- 
ready been spent and that she used it for 
extra nursing school expenses, her own 
medical expenses, and various living ex- 
penses. Grantham v. Lucas, 2011 Ark. 
App. 491, — S.W.3d — (2011), review 
denied, — S.W.3d — , 2012 Ark. LEXIS 27 
(Ark. Jan. 19, 2012). 



9-12-315 



FAMILY LAW 



138 



Marital Property. 

Trial court erred in a divorce action in 
finding that a wife's stock interest in a 
family company was nonmarital property 
because the stock was marital property 
under subsection (b) of this section; the 
wife received the stock during the mar- 
riage. The stock was not acquired in ex- 
change for nonmarital property or income; 
instead, it was exchanged for a note re- 
ceivable. Kelly v. Kelly, 2011 Ark. 259, — 
S.W.3d — (2011). 

While a husband was assessed the bulk 
of the parties' marital debt, pursuant to 
subdivision (a)(1) of this section, reversal 
was necessary as his continued receipt of 
his entire military retirement benefits 
would result in a substantial windfall to 
him. Bellamy v. Bellamy, 2011 Ark. App. 
433, — S.W3d — (2011). 

In this divorce action, the order finding 
that the parties' home was marital prop- 
erty was affirmed because while the wife 
might have intended to maintain the sta- 
tus of her separate property, she did not; 
the deed to the house was to the parties 
jointly, as husband and wife. McClure v. 
Schollmier-McClure, 2011 Ark. App. 681, 

— S.W.3d — (2011). 

In a divorce action, the trial court did 
not err under subsection (a) of this section 
in awarding the husband the first $90,000 
from the sale of the marital home and 
equally dividing the remaining proceeds 
because the parties had received a credit 
of $90,000 toward the property's purchase 
price when they traded a property the 
husband owned prior to the marriage for 
the marital property. McCormick v. Mc- 
Cormick, 2012 Ark. App. 318, — S.W.3d — 
(2012). 

Division of a retirement account be- 
tween the husband and wife was appro- 
priate pursuant to subdivision (b)(1) of 
this section because, by using the formula 
that it chose, the trial court took into 
account that the size of the premarital 
contribution allowed the account to grow 
more than it would have otherwise been 
able to do. The appellate court was simply 
not left with a definite and firm conviction 
that the trial court made a mistake in 
dividing the retirement account and the 
sums that were withdrawn from that ac- 
count in the manner that it did. Atchison 
v. Atchison, 2012 Ark. App. 572, — S.W.3d 

— (2012). 



Trial court did not err in a divorce 
action in awarding the husband all of a $ 
1.6 million settlement from his FELA per- 
sonal injury claim because the FELA pro- 
ceeds were not marital property, as de- 
fined under subdivision (b)(6) of this 
section; the trial court found that the 
entire settlement was for a degree of per- 
manent disability and future medical ex- 
penses. Palmer v. Palmer, 2012 Ark. App. 
607, — S.W3d — , 2012 Ark. App. LEXIS 
729 (Oct. 31, 2012). 

Court did not reach the wife's alimony 
challenge; on remand to find the value of 
certain ventures and explain reasons for 
the unequal division in the order, the trial 
court could reconsider the alimony award. 
Farrell v. Farrell, 2013 Ark. App. 23, — 
S.W.3d — , 2013 Ark. App. LEXIS 33 (Jan. 
23, 2013). 

Subdivision (a)(4) of this section pro- 
vided that a trial court had to determine 
the fair market value of securities if the 
trial court awarded money or other prop- 
erty in lieu of a division of stocks, bonds, 
and other securities, and although the 
value of the businesses was within the 
range provided by expert testimony, the 
statute required the trial court to ex- 
pressly find the value of this type of prop- 
erty, and it was necessary to remand this 
question for such a finding. Farrell v. 
Farrell, 2013 Ark. App. 23, — S.W3d — , 
2013 Ark. App. LEXIS 33 (Jan. 23, 2013). 

Standard of Review. 

Overall distribution of the parties' prop- 
erty in the divorce proceeding was not 
clearly erroneous, because the wife erro- 
neously included the children's money and 
the 2008 tax overpayment in her list of 
assets purportedly awarded to the hus- 
band, the wife did not account for the 
businesses' liabilities, and the testimony 
and exhibits introduced by the husband 
more than adequately demonstrated that 
the court equally distributed the marital 
estate. Dew v. Dew, 2012 Ark. App. 122, — 
S.W.3d — (2012). 

Unequal Division. 

Trial court did not clearly err under this 
section by making an unequal division 
and allowing a wife to keep all of her 
retirement benefits in the parties' divorce 
action, as such was an equitable distribu- 
tion because during their 10-year mar- 
riage, the husband had purposely worked 



139 



CHILD CUSTODY AND VISITATION 



9-13-101 



below his full earning capacity and re- 
mained purposely, chronically underem- 
ployed. Grantham v. Lucas, 2011 Ark. 
App. 491, — S.W.3d — (2011), review 
denied, — S.W.3d — , 2012 Ark. LEXIS 27 
(Ark. Jan. 19, 2012). 

In a divorce proceeding, the trial court 
erred under subdivision (a)(1)(A) of this 
section in failing to award the husband 
any portion of the value of the wife's 
gift-store inventory because while the 
court attempted to make as close to a 
50/50 distribution of the entire marital 
estate as possible, the distribution of busi- 
ness assets was uneven, depriving the 
husband of $9,000. Bamburg v. Bamburg, 
2011 Ark. App. 546, — S.W.3d — (2011). 

It was necessary to remand a divorce 
case because the trial court failed to com- 
ply with subdivision (a)(1)(B) of this sec- 
tion by giving a comprehensive explana- 
tion of why it divided the parties' marital 
property unequally; the trial court did not 
address the wife's claim that the husband 
took marital funds for his personal use 
and that she should be compensated for 
her share. Watkins v. Watkins, 2012 Ark. 
App. 27, — S.W.3d — (2012). 



In a marital dissolution action, the 
court erred under subdivision (a)(1)(B) of 
this section in not dividing the marital 
equity in a certificate of deposit held in the 
husband's name; the court did not recite 
any reasons in its decree as to why its 
decision was equitable. Wadley v. Wadley, 
2012 Ark. App. 208, — S.W.3d — (2012). 

Division of property was proper, be- 
cause the court considered all of the rel- 
evant statutory factors under this section, 
and made specific findings concerning its 
reason for the unequal division of prop- 
erty; the husband acknowledged that the 
court was correct to consider the contribu- 
tions of each party in deciding how to 
divide property. Waggoner v. Waggoner, 

2012 Ark. App. 286, — S.W.3d — (2012). 
Trial court did explain its division in the 

letter opinion, but the trial court did not 
incorporate that opinion in the decree, 
and thus the court had to remand this 
issue for the trial court to satisfy subdivi- 
sion (a)(i)(B) of this section. Farrell v. 
Farrell, 2013 Ark. App. 23, — S.W.3d — , 

2013 Ark. App. LEXIS 33 (Jan. 23, 2013). 



CHAPTER 13 
CHILD CUSTODY AND VISITATION 

Subchapter 1 — General Provisions 

9-13-101. Award of custody. 

RESEARCH REFERENCES 



ALR. Construction and Application by 
State Courts of Indian Child Welfare Act 
of 1978 Requirement of Active Efforts to 
Provide Remedial Services, 25 U.S.C.S. 
§ 1912(d). 61 A.L.R.6th 521. 



Validity, Construction, and Application 
of Placement Preferences of State and 
Federal Indian Child Welfare Acts. 63 
A.L.R.6th 429. 



CASE NOTES 



Analysis 

Change in Custody Warranted. 
Domestic Violence. 
Grandparents' Rights. 
Modification. 



Change in Custody Warranted. 

In modifying a child custody arrange- 
ment, the trial court did not clearly err in 
finding that joint custody under subsidi vi- 
sion (b)(l)(A)(ii) of this section could not 
continue and that it was in the best inter- 



9-13-103 



FAMILY LAW 



140 



ests of the children that primary custody 
be awarded to the father; the parties' 
stipulated to changed circumstances 
based on their inability to communicate. 
In considering the children's best inter- 
ests, the court noted that their son saw his 
parents together in an occasional relation- 
ship, then saw his dad dating other 
women; the parents did not present a good 
reality for their son. Collier v. Collier, 2012 
Ark. App. 146, — S.W.3d — (2012). 

Domestic Violence. 

In denying appellant father's motion to 
change child custody, the trial court did 
not err in failing to apply the presumption 
in subdivisions (c)(1) and (2) of this section 
that it was not in the best interest of a 
child to remain in the custody of an abu- 
sive parent because appellee mother's 
poor housekeeping was not a form of do- 
mestic violence. Loftis v. Nazario, 2012 
Ark. App. 98, — S.W.3d — (2012). 

Grandparents' Rights. 

The plain language of this section, read 
as a whole, shows an intent to allow a 



grandparent to intervene, and even be 
awarded custody, when there is an exist- 
ing custody suit; it does not allow the 
grandparent to create the custody dispute 
or initiate a custody action. Therefore, a 
trial court did not err by dismissing a 
grandfather's petition for custody of his 
granddaughter since there was no divorce 
or custody dispute in which to intervene. 
Pfeifer v. Deal, 2012 Ark. App. 190, — 
S.W.3d — (2012). 

Modification. 

Because a mother presented evidence 
that the father was effecting an alienation 
of her parental rights based on his erro- 
neous interpretation of the visitation 
guidelines, the circuit court erred by fail- 
ing to view the evidence in a light most 
favorable to the mother and by exercising 
its fact-finding powers. Wagner v. Wagner, 
2011 Ark. App. 475, — S.W3d — (2011). 

Cited: Gammill v. Hoover, 2011 Ark. 
App. 788, — S.W3d — (2011). 



9-13-103. Visitation rights of grandparents when the child is in 
the custody of a parent. 

CASE NOTES 



Analysis 

Constitutionality 
Illustrative Cases. 
Presumption Not Rebutted. 

Constitutionality. 

Argument that a trial court unconstitu- 
tionally applied subsections (b)-(e) of this 
section was not heard on appeal because it 
was not raised before the trial court. The 
trial court did not err by granting grand- 
parents' visitation rights because they 
had a significant and viable relationship 
with a child, and there was no evidence 
that the grandparents would not respect 
the mother's parental role or that they 
were unable to cooperate with the mother 
regarding visitation. Madison v. Osburn, 
2012 Ark. App. 212, — S.W.3d — (2012). 

Illustrative Cases. 

Trial court did not err under subdivision 
(b)(1) of this section in granting visitation 
to a child's maternal grandmother and 
great-grandmother because the actions of 



the child's father were not conducive to 
maintaining a significant relationship 
with them and the loss of that relation- 
ship would likely harm the child; the child 
spent 90 percent of the time with them 
during the first year of the child's life. 
Pippinger v. Benson, 2011 Ark. App. 442, 
— S.W.3d — (2011). 

Petition for visitation by a maternal 
grandmother and great-grandmother un- 
der this section was premature because, 
while the father had severely restricted 
contact between them and the child, he 
had not cut off visitation and, thus, they 
failed to prove by a preponderance of the 
evidence that the relationship had been, 
or would have been, lost. Pippinger v. 
Benson (In re Adoption of J.P.), 2011 Ark. 
535, — S.W.3d — (2011). 

Order granting appellees visitation 
with their grandchildren was reversed be- 
cause the trial court substituted a benefit 
analysis for the required statutory pre- 
sumption in favor of the parent's decision 
and in so doing, the trial court basically 



141 



SPOUSAL AND CHILD SUPPORT 



9-14-107 






required appellant to prove that visitation 
would be harmful, losing sight of the fact 
that it was the parent who had a right to 
uninterrupted custody. Bowen v. Bowen, 
2012 Ark. App. 403, — S.W.3d — (2012). 

Award of grandparent visitation was 
improper. However, because the grand- 
parents established regular contact with 
the child for at least 12 consecutive 
months during the child's life while his 
parents were still married, the grandpar- 
ents proved a significant and viable rela- 
tionship under subdivision (d)(1)(C) of this 
section even though they had not had 
recent regular contact with the child. Har- 
rison v. Phillips, 2012 Ark. App. 474, — 
S.W.3d — (2012). 

Award of grandparent visitation to the 
child's paternal grandparents was inap- 
propriate because they failed to rebut the 
statutory presumption under subsection 
(e) of this section that the mother's deny- 
ing visitation was in the child's best inter- 
est. There was a lack of evidence that the 
loss of the grandparents' relationship with 
the child was likely to harm the child and 
the trial court made no written findings of 
the factors it considered in awarding 
grandparent visitation. Harrison v. Phil- 
lips, 2012 Ark. App. 474, — S.W.3d — 
(2012). 

Decision granting the grandmother's 
petition for grandparent visitation was 
inappropriate pursuant to subdivision 
(c)(1) of this section because the trial court 
failed to address the required element of 
harm that the child would suffer from a 



loss of her relationship with her grand- 
mother and there was insufficient evi- 
dence in the record to satisfy the grand- 
mother's burden of proving that element. 
Thus, the trial court's finding that the 
grandmother had proved that visitation 
was in the child's best interest was clearly 
erroneous. Favano v. Elliott, 2012 Ark. 
App. 484, — S.W.3d — (2012). 

Because the grandparents did not prove 
that they had been denied visitation, they 
failed to prove the loss in relationship 
necessary to satisfy this section. Further, 
the decision to reverse the order of grand- 
parent visitation was equally based upon 
the grandparents' failure to show that 
they could and would cooperate with the 
father were visitation allowed; therefore, 
the trial court's finding that the grandpar- 
ents were willing to cooperate with appel- 
lant if visitation was allowed was clearly 
erroneous. Harvill v. Bridges, 2012 Ark. 
App. 683, — S.W.3d — , 2012 Ark. App. 
LEXIS 805 (Dec. 5, 2012). 

Presumption Not Rebutted. 

Circuit court erred by awarding grand- 
parent visitation; because the grandmoth- 
er's visitation had been limited by the 
child's father but not altogether denied, 
she failed to prove the loss in relationship 
necessary to overcome the presumptive 
weight given to the parent's decision of 
whether grandparent visitation was in the 
best interest of the child under subdivi- 
sion (c)(1) of this section. Morris v. Dick- 
erson, 2012 Ark. App. 129, — S.W.3d — 
(2012). 



CHAPTER 14 
SPOUSAL AND CHILD SUPPORT 

Subchapter 1 — General Provisions 

9-14-107. Change in payor income warranting modification. 

CASE NOTES 



Deviation from Chart. 

While there was no evidence that a 
father willfully failed to follow the trial 
court's child support orders, the record 
contained no specific written findings 
about the presumptive amount under the 



guidelines based upon the father's income 
or why the presumptive amount was un- 
just or inappropriate under subsection (c) 
of this section. Stevenson v. Stevenson, 
2011 Ark. App. 552, — S.W.3d — (2011). 



9-14-233 FAMILY LAW 

Subchapter 2 — Enforcement Generally 



142 



9-14-233. Arrearages — Interest and attorney's fees — Work 
activities and incarceration. 

CASE NOTES 



Judgment Interest. 

Court affirmed the trial court's order 
concerning the support of appellant's mi- 
nor child because appellant's assertion 
that she was entitled to interest under 
this section and to attorney fees was 
barred by res judicata, and res judicata 



also barred relitigation of the child-sup- 
port arrearage issue as the question had 
already been reduced to judgment by the 
trial court's original support order under 
§§ 9-12-314 and 9-14-234. Williams v. 
Nesbitt, 2012 Ark. App. 408, — S.W.3d — 
(2012). 



9-14-234. Arrearages — Finality of judgment. 

CASE NOTES 



Modification. 

Court affirmed the trial court's order 
concerning the support of appellant's mi- 
nor child because appellant's assertion 
that she was entitled to interest under 
§ 9-14-233 and to attorney fees was 
barred by res judicata, and res judicata 



also barred relitigation of the child-sup- 
port arrearage issue as the question had 
already been reduced to judgment by the 
trial court's original support order under 
§ 9-12-314 and this section. Williams v. 
Nesbitt, 2012 Ark. App. 408, — S.W3d — 
(2012). 



9-14-237. Expiration of child support obligation. 

CASE NOTES 



Termination of Support. 

Section 9-14-115(e)(l)(A) provides that 
an adjudicated father is entitled to one 
paternity test at any time during the 
period of time that he is required to pay 
child support, and the period of time in 
which a non-custodial parent is obligated 
to pay child support automatically termi- 
nates upon the child's 18th birthday pur- 
suant to subdivision (a)(l)(A)(i) of this 
section. Thus, the period that a father is 
required to pay child support ends when 
the child turns 18; likewise, the period of 
time in which the father can seek a pater- 
nity test also ends when the child turns 
18. State v. Perry, 2012 Ark. 106, — 
S.W.3d — (2012). 

Where a default judgment was entered 



in paternity proceedings and the adjudi- 
cated father's support obligation was es- 
tablished in 1995, where the Office of 
Child Support Enforcement (OCSE) insti- 
tuted proceedings in 2005 to recover sup- 
port arrearages, and where the adjudi- 
cated father requested a paternity test, 
the circuit court erred in granting the 
father's motion because the father's mo- 
tion was untimely in that § 9-10- 
115(e)(1)(A) allowed an adjudicated father 
one paternity test during any time period 
in which he was required to pay child 
support and the father's child support 
obligation terminated under this section 
when the child reached the age of major- 
ity. State v. Perry, 2012 Ark. 106, — 
S.W.3d — (2012). 



143 



DOMESTIC ABUSE ACT 

CHAPTER 15 
DOMESTIC ABUSE ACT 



9-15-204 



Subchapter 2 — Judicial Proceedings 

9-15-201. Petition — Requirements generally. 

CASE NOTES 



Evidence. 

Although an ex-wife's petition for an 
order of protection properly alleged do- 
mestic abuse, pursuant to subdivision 
(e)(1)(A) of this section, there was insuffi- 
cient evidence to support the trial court's 
grant of the order because the ex-hus- 
band's constant phone calls and harassing 



emails did not fall under the legislative 
definition of domestic abuse; there was no 
evidence the ex-husband's comment of "or 
else" was in fact some sort of threat of 
physical or bodily harm. Paschal v. Pas- 
chal, 2011 Ark. App. 515, — S.W.3d — 
(2011). 



9-15-204. Hearing — Service. 

CASE NOTES 



Notice. 

Because a protective order hearing was 
a special proceeding under Ark. R. Civ. P. 
81, the notice procedures in subdivision 
(b)(1)(A) of this section, and not Ark. R. 
Civ. P. 6(c), applied; therefore, because a 
respondent was timely served six days 
before the protective order hearing, the 
respondent's motion to set aside an order 
of protection was properly dismissed. 
Wills v. Lacefield, 2011 Ark. 262, — S.W.3d 
— (2011). 

In a case where appellant contended 
that an order of protection did not comport 
with the requirements of the law because 
it was issued after a hearing without 
appellant receiving actual notice or an 
opportunity to participate therein, the re- 



vocation of probation based on the com- 
mission of a felony was appropriate be- 
cause appellant violated the protective 
order under § 5-53-134; by pleading 
guilty, appellant admitted that he knew 
the order existed, an element of the crime, 
and that he knowingly violated it. Appel- 
lant did not seek to appeal the order of 
protection, he did not raise a lack of notice 
before entering his guilty plea, and he did 
not appeal the judgment following the 
plea in that case; moreover, the circuit 
court had jurisdiction over any criminal 
act within its borders, and appellant ad- 
mitted to committing the criminal act of 
violating the protective order. Standridge 
v. State, 2012 Ark. App. 563, — S.W.3d — 
(2012). 



9-17-501 FAMILY LAW 

CHAPTER 17 
UNIFORM INTERSTATE FAMILY SUPPORT ACT 



144 



Article 5 

Direct Enforcement of Order of Another State Without 

Registration 



9-17-501. Employer's receipt of income-withholding order of 
another state. 

CASE NOTES 



Statutory Scheme. 

County was not required to register the 
income-withholding order, because the 
county decided to send the withholding 
order directly to the employer, as allowed 
under this section, and the applicable 



statutory scheme required the employer 
to comply with the withholding order and 
by doing so, it could not be held civilly 
liable. Schultz v. Butterball, 2012 Ark. 
163, — S.W.3d — (2012). 



9-17-502. Employer's compliance with income-withholding or- 
der of another state. 

CASE NOTES 



Statutory Scheme. 

County was not required to register the 
income-withholding order, because the 
county decided to send the withholding 
order directly to the employer, as allowed 
under § 9-17-501, and the applicable 



statutory scheme required the employer 
to comply with the withholding order and 
by doing so, it could not be held civilly 
liable. Schultz v. Butterball, 2012 Ark. 
163, — S.W.3d — (2012). 



9-17-505. Penalties for noncompliance. 



CASE NOTES 



Statutory Scheme. 

County was not required to register the 
income-withholding order, because the 
county decided to send the withholding 
order directly to the employer, as allowed 
under § 9-17-501, and the applicable 

9-17-506. Contest by obligor. 



statutory scheme required the employer 
to comply with the withholding order and 
by doing so, it could not be held civilly 
liable. Schultz v. Butterball, 2012 Ark. 
163, — S.W.3d — (2012). 



CASE NOTES 



Statutory Scheme. 

There was no merit to the argument 
that the income-withholding statutory 



scheme violated Ark. Const. Art. 2, § 13, 
because subsection (a) of this section al- 
lowed the employee a way to seek redress 



145 QUALIFIED DOMESTIC RELATIONS ORDERS 9-18-101 

in the event the support order was defec- 
tive. Schultz v. Butterball, 2012 Ark. 163, 
— S.W.3d — (2012). 

9-17-507. Administrative enforcement of orders. 

CASE NOTES 

Statutory Scheme. by doing so, it could not be held civilly 

County was not required to register the liable; the registration requirement of 

income-withholding order, because the subsection (a) of this section was triggered 

county decided to send the withholding only if a party sought the assistance of a 

order directly to the employer, as allowed support-enforcement agency in the state 

under § 9-17-501, and the applicable and the obligor contested the validity of 

statutory scheme required the employer the order. Schultz v. Butterball, 2012 Ark. 

to comply with the withholding order and 163, — S.W.3d — (2012). 

Article 6 
Enforcement and Modification of Support Order After Registration 

Part 1 — Registration and Enforcement of Support Order 

9-17-602. Procedure to register order for enforcement. 

CASE NOTES 

Statutory Scheme. statutory scheme required the employer 

County was not required to register the to comply with the withholding order and 

income-withholding order, because the by doing so, it could not be held civilly 

county decided to send the withholding liable. Schultz v. Butterball, 2012 Ark. 

order directly to the employer, as allowed 163 S.W.3d (2012). 

under § 9-17-501, and the applicable 

CHAPTER 18 
QUALIFIED DOMESTIC RELATIONS ORDERS 

9-18-101. Definitions. 

^CASE NOTES 

Appellate Review. between the time a qualified domestic 

Circuit court clearly erred by entering a relations was entered and when she 

judgment against a former husband for elected distribution. Duncan v. Duncan, 

$115,936.81 to the benefit of his former 2011 Ark. 348, — S.W.3d — (2011). 
wife after her separate account lost value 



9-18-102 FAMILY LAW 146 

9-18-102. Orders to reach retirement benefits. 

CASE NOTES 

Appellate Review. between the time a qualified domestic 

Circuit court clearly erred by entering a relations was entered and when she 

judgment against a former husband for elected distribution. Duncan v. Duncan, 

$115,936.81 to the benefit of his former 2011 Ark. 348, — S.W.3d — (2011). 
wife after her separate account lost value 

CHAPTER 19 

UNIFORM CHILD-CUSTODY JURISDICTION AND 
ENFORCEMENT ACT 

Subchapter 1 — General Provisions 

9-19-102. Definitions. 

RESEARCH REFERENCES 

ALR. Construction and Application of Enforcement Act's Home State Jurisdic- 
Uniform Child Custody Jurisdiction and tion Provision. 57 A.L.R.6th 163. 

9-19-104. Application to Indian tribes. 

RESEARCH REFERENCES 

ALR. Construction and Application by Validity, Construction, and Application 

State Courts of Indian Child Welfare Act of Placement Preferences of State and 

of 1978 Requirement of Active Efforts to Federal Indian Child Welfare Acts. 63 

Provide Remedial Services, 25 U.S.C.S. ALR 6th 429 
§ 1912(d). 61 AL.R.6th 521. 

9-19-105. Internal application of chapter. 

RESEARCH REFERENCES 

ALR. Applicability and Application of tional Child Custody and Support Actions. 
Uniform Child Custody Jurisdiction and 66 A.L.R.6th 269. 
Enforcement Act (UCCJEA) to Interna- 

SUBCHAPTER 2 JURISDICTION 

9-19-201. Initial child-custody jurisdiction. 

RESEARCH REFERENCES 

ALR. Construction and Application of tion Provision. 57 A.L.R.6th 163. 
Uniform Child Custody Jurisdiction and Construction and Application of Uni- 
Enforcement Act's Home State Jurisdic- form Child Custody Jurisdiction and En- 



147 CHILD-CUSTODY JURISDICTION & ENFORCEMENT 9-19-208 

forcement Act's Exclusive, Continuing Ju- form Child Custody Jurisdiction and En- 

risdiction Provision — No Significant forcement Act's Exclusive, Continuing Ju- 

Connection/Substantial Evidence. 59 risdiction Provision — Other Than No 

A.L.R.6th 161. Significant Connection/Substantial Evi- 

Construction and Application of Uni- dence. 60 A.L.R.6th 193. 

9-19-202. Exclusive, continuing jurisdiction. 

RESEARCH REFERENCES 

ALR. Construction and Application of Construction and Application of Uni- 
Uniform Child Custody Jurisdiction and form Child Custody Jurisdiction and En- 
Enforcement Act's Exclusive, Continuing forcement Act's Exclusive, Continuing Ju- 
Jurisdiction Provision — No Significant risdiction Provision — Other Than No 
Connection/Substantial Evidence. 59 Significant Connection/Substantial Evi- 
A.L.R.6th 161. dence. 60 A.L.R.6th 193. 

9-19-203. Jurisdiction to modify determination. 

RESEARCH REFERENCES 

ALR. Construction and Application of Jurisdiction Provision — No Significant 
Uniform Child Custody Jurisdiction and Connection/Substantial Evidence. 59 
Enforcement Act's Exclusive, Continuing A.L.R.6th 161. 

9-19-206. Simultaneous proceedings. 

CASE NOTES 

In General. tody determination was made there and 

Arkansas county circuit court did not allegations were made that the child had 

err in declining to exercise jurisdiction been removed to California to prevent 

over a child custody matter because Cali- abuse by appellant mother. Casas-Cord- 

fornia was a more appropriate forum un- ero v. Mira, 2012 Ark. App. 457, — S.W.3d 

der § 9-19-207(b) as a previous child cus- — (2012). 

9-19-207. Inconvenient forum. 

CASE NOTES 

In General. previous child custody determination was 

Arkansas county circuit court did not made there and allegations were made 

err in declining to exercise jurisdiction that the child had been removed to Cali- 

over a child custody matter because Cali- fornia to prevent abuse by appellant 

fornia was a more appropriate forum un- mother. Casas-Cordero v. Mira, 2012 Ark. 

der subsection (b) of this section as a App. 457, — S.W.3d — (2012). 

9-19-208. Jurisdiction declined by reason of conduct. 

RESEARCH REFERENCES 

ALR. Construction and Application of Enforcement Act's Home State Jurisdic- 
Uniform Child Custody Jurisdiction and tion Provision. 57 A.L.R.6th 163. 



9-19-305 



FAMILY LAW 
Subchapter 3 — Enforcement 



148 



9-19-305. Registration of child-custody determination, 

CASE NOTES 



Application. 

In a divorce case, a trial court erred by 
awarding a former wife her travel ex- 
penses because they were not authorized 
by Ark. R. Civ. P. 54(d); moreover, subsec- 



tion (c) of this section had no application 
as it concerned the registration of child- 
custody determinations. Clowers v. 
Stickel, —Ark. App. — , — S.W.3d — , 2012 
Ark. App. LEXIS 466 (May 16, 2012). 



SUBTITLE 3. MINORS 

CHAPTER 25 
GENERAL PROVISIONS 

9-25-101. Age of majority — Exceptions. 

CASE NOTES 



Consensual Sexual Relations. 

Section 5- 14- 125(a)(6), as applied to a 
high school teacher who engaged in a 
consensual sexual relationship with an 
18-year-old student, who was an adult 
under subsection (a) of this section, in- 



fringed on the teacher's fundamental 
right to privacy and was not the least 
restrictive method available for the pro- 
motion of the state's interest; therefore, it 
was unconstitutional. Paschal v. State, 
2012 Ark. 127, — S.W.3d — (2012). 



CHAPTER 27 
JUVENILE COURTS AND PROCEEDINGS 

Subchapter 3 — Arkansas Juvenile Code 

9-27-302. Purposes — Construction. 

CASE NOTES 



Analysis 

Purpose. 
Best Interests. 

Purpose. 

Arkansas Department of Human Ser- 
vices (DHS) was not entitled to certiorari 
relief in a dependency-neglect proceeding 
because the circuit court was within its 
jurisdiction under subdivision (1) of this 
section to act to protect the integrity of the 
proceeding and to safeguard the rights of 
the litigants before it when it ordered 



DHS to correct problems that were pre- 
venting work and services. Ark. Dep't of 
Human Servs. v. Shelby, 2012 Ark. 54, — 
S.W.3d — (2012). 

Best Interests. 

Trial court erred under subdivisions (1) 
and (2)(A) of this section in awarding 
permanent custody to maternal grandpar- 
ents on the ground that it was in the 
children's best interest; while the chil- 
dren's father had some issues to resolve, 
since the case was commenced, a mere six 
months before the trial court awarded the 



149 



JUVENILE COURTS AND PROCEEDINGS 



9-27-303 



grandparents custody, he had no positive 
drug tests, maintained employment, and 
was living in an approved housing situa- 



9-27-303. Definitions. 



tion with his parents. Chase v. Ark. Dep't 
of Human Servs., 2012 Ark. App. 311, — 
S.W.3d — (2012). 



CASE NOTES 



Analysis 

Appeal. 

Dependent-Neglect Adjudication. 

Dependent-Neglected Juvenile. 

Jurisdiction. 

Neglect. 

Appeal. 

Trial court did not err in terminating 
the mother's parental rights because 
there was sufficient evidence to support a 
finding that termination was in the child's 
best interest, and the Arkansas Depart- 
ment of Human Services had proved that 
the mother had abandoned the child and 
had subjected him to aggravated circum- 
stances under§ 9-27- 
341(bX3XBXix)(a)(3)(B) and subdivision 
(1) of this section. Thus, counsel complied 
with Ark. Sup. Ct. & Ct. App. R. 6-9(i), and 
the appeal was wholly without merit. 
Fant v. Ark. Dep't of Human Servs., 2012 
Ark. App. 428, — S.W.3d — (2012). 

Dependent-Neglect Adjudication. 

Trial court did not err under subdivision 
(18)(A) of this section in adjudicating a 
mother's daughter dependent-neglected 
on the ground that the daughter was at 
substantial risk of future sexual abuse by 
her six-year-old brother because the 
mother had missed her psychological- 
evaluation appointment and resisted ef- 
forts to remedy household instability and 
neglect. Weatherspoon v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 34, — 
S.W.3d — (2012). 

Sufficient evidence supported the trial 
court's determination that appellant's 
children were dependent-neglected based 
on an allegation of abuse by choking un- 
der subdivision (3)(A) of this section, be- 
cause appellant's daughter testified that 
her father held her down on a bed, placed 
his hands around her neck, and choked 
her; she was not able to breathe. Her 
brother confirmed that the choking took 
place and his father ordered him to re- 



strain her legs during the incident; a fam- 
ily-service worker also testified that ap- 
pellant admitted to her that the incident 
occurred. Lynch v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 149, — S.W.3d — 
(2012). 

The order adjudicating appellant's 
daughter dependent-neglected was af- 
firmed because the daughter had been 
involved in a fight with a male and had 
suffered a head injury, which required 
medical attention, and the daughter 
showed up at a hearing in juvenile court 
without a parent or guardian present. 
Lowe v. Ark. Dep't of Human Servs., 2012 
Ark. App. 155, — S.W.3d — (2012). 

Finding that the adopted daughter was 
dependent-neglected as a result of sexual 
abuse by the father was not clearly erro- 
neous, because the daughter testified that 
her father first touched her inappropri- 
ately when she was eleven years old, the 
daughter testified that the abuse hurt and 
that she would try to pull away, and the 
court expressly found the testimonies of 
the daughter and the certified sexual- 
assault examiner to be both credible and 
consistent with each other. Wells v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 
176, — S.W.3d — (2012). 

Court erred in adjudicating the children 
as dependent-neglected, because the Ar- 
kansas Department of Human Services 
failed to provide sufficient proof that the 
spankings were anything other than mod- 
erate or reasonable, and did not result in 
other than transient pain, and one inci- 
dent that did not result in injury should 
not give rise to the removal of the children 
from the home. Johnson v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 244, — 
S.W.3d — (2012). 

Order in which the child was adjudi- 
cated dependent-neglected was affirmed 
because there was a true prior finding by 
investigators that appellant and the pa- 
ternal grandfather subjected the child to 
extreme and repeated cruelty; appellant 
and the paternal grandfather would re- 



9-27-306 



FAMILY LAW 



150 



cord inappropriate interviews with the 
child that were emotionally traumatizing. 
Stoliker v. Ark. Dep't of Human Servs., 
2012 Ark. App. 415, — S.W.3d — (2012). 

Trial court did not err under subdivision 
(18)(A) of this section in adjudicating a 
mother's infant son dependent-neglected 
because the trial court was faced with the 
uncontested prior finding that one of the 
infant's siblings had been physically 
abused while under the age of one, even 
though the offender was unknown. Eason 
v. Ark. Dep't of Human Servs., 2012 Ark. 
App. 507, — S.W.3d — (2012). 

Evidence was sufficient to support the 
trial court's decision adjudicating appel- 
lant's children dependent-neglected under 
subdivisions (18)(A)(v)-(vi) of this section, 
because they were in her care the day she 
was arrested for possession of drug para- 
phernalia and tested positive for metham- 
phetamine. Appellant's conduct consti- 
tuted neglect and placed the children at 
risk of substantial harm. Gaer v. Ark. 
Dep't of Human Servs. & Minor Children, 
2012 Ark. App. 516, — S.W.3d — (2012). 

Dependent-Neglected Juvenile. 

Trial court did not err in adjudicating 
parents' children dependent-neglected un- 
der subdivision (18)(A) of this section be- 
cause injuries to their infant had to be the 
result of a high-force trauma, and a care- 
giver would have had to know the infant 
suffered the trauma; yet no one sought 
medical care for the infant immediately 
after whatever event caused the injuries, 
which consisted of multiple rib fractures, 
a skull fracture, bruises, and retinal hem- 
orrhaging. Churchill v. Ark. HHS, 2012 
Ark. App. 530, — S.W.3d — (2012). 

Jurisdiction. 

Circuit court had jurisdiction to hear 
the case even though it concerned child- 



custody law and was outside the subject of 
proceedings in the juvenile division, be- 
cause the designation of divisions was for 
the purpose of judicial administration and 
not for the purpose of subject matter ju- 
risdiction, and the creation of divisions 
would in no way limit the powers and 
duties of the judges to hear all matters 
within the jurisdiction of the circuit court; 
once the juvenile division of the circuit 
court ordered that the child be placed in 
the permanent custody of the third par- 
ties, the child was no longer dependent- 
neglected and she came into dependency- 
neglect proceedings due to parental 
neglect and parental unfitness. Young v. 
Ark. Dep't of Human Servs., 2012 Ark. 
334, — S.W.3d — (2012). 

Neglect. 

Order for the Arkansas Department of 
Human Services to provide a pregnant 
teenager with school uniforms and mater- 
nity clothes was clearly erroneous because 
the lack of such did not pose an immediate 
danger to the teenager's health or physi- 
cal well-being under § 12-18-1001(a); 
there was a lack of evidence to support the 
finding that the teenager was at immedi- 
ate risk of severe maltreatment and that 
family services were necessary to prevent 
her removal, the failure to make findings 
necessitated reversal, and the trial court's 
personal recollections were not sufficient. 
In addition, even if the teenager lacked 
school uniforms and maternity clothes be- 
cause her family could not afford them 
and was kept out of school as a result, this 
did not constitute neglect that warranted 
removal from the home. Ark. Dep't of 
Human Servs. v. A.M., 2012 Ark. App. 240, 
— S.W.3d — (2012). 

Cited: Bayron v. Ark. Dep't of Human 
Servs. & Minor Children, 2012 Ark. App. 
75, — S.W.3d — (2012). 



9-27-306. Jurisdiction. 



CASE NOTES 



Exclusive Jurisdiction. 

Arkansas Department of Human Ser- 
vices (DHS) was not entitled to certiorari 
relief in a dependency-neglect proceeding 
because the circuit court was within its 
exclusive jurisdiction to act to protect the 



integrity of the proceeding and to safe- 
guard the rights of the litigants before it 
when it ordered DHS to correct problems 
that were preventing work and services. 
Ark. Dep't of Human Servs. v. Shelby, 
2012 Ark. 54, — S.W.3d — (2012). 



151 JUVENILE COURTS AND PROCEEDINGS 

9-27-309. Confidentiality of records. 

CASE NOTES 



9-27-318 



Cited: C.L. v. State, 2012 Ark. App. 
374, — S.W.3d — (2012). 

9-27-311. Required contents of petition. 

CASE NOTES 



Insufficient Evidence. 

Court erred in adjudicating the children 
as dependent-neglected, because the Ar- 
kansas Department of Human Services 
failed to provide sufficient proof that the 
spankings were anything other than mod- 
erate or reasonable, and did not result in 



other than transient pain, and one inci- 
dent that did not result in injury should 
not give rise to the removal of the children 
from the home. Johnson v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 244, — 
S.W.3d — (2012). 



9-27-313. Taking into custody. 

CASE NOTES 



Removal. 

Order for the Arkansas Department of 
Human Services to provide a pregnant 
teenager with school uniforms and mater- 
nity clothes was clearly erroneous because 
the lack of such did not pose an immediate 
danger to the teenager's health or physi- 
cal well-being under § 12- 18- 100 1(a); 
there was a lack of evidence to support the 
finding that the teenager was at immedi- 
ate risk of severe maltreatment and that 
family services were necessary to prevent 

9-27-316. Right to counsel. 



her removal, the failure to make findings 
necessitated reversal, and the trial court's 
personal recollections were not sufficient. 
In addition, even if the teenager lacked 
school uniforms and maternity clothes be- 
cause her family could not afford them 
and was kept out of school as a result, this 
did not constitute neglect that warranted 
removal from the home. Ark. Dep't of 
Human Servs. v. A.M., 2012 Ark. App. 240, 
— S.W.3d — (2012). 



CASE NOTES 

Cited: B.H.I v. Ark. HHS, 2012 Ark. 
App. 532, — S.W.3d — (2012). 

9-27-318. Filing and transfer to the criminal division of circuit 
court. 

CASE NOTES 



Analysis 



Constitutionality. 



Extended Juvenile Jurisdiction Hearing. 

Factors Considered. 

Jurisdiction. 



9-27-318 



FAMILY LAW 



152 



Procedure. 
Transfer Denied. 

Constitutionality. 

This section, which vested prosecutors 
with the discretion to bring felony charges 
against 16-year-olds in the criminal divi- 
sions of circuit courts, was substantive 
law and not a rule of pleading, practice, 
and procedure; therefore, it did not violate 
separation of powers under Ark. Const. 
Art. 4, §§ 1, 2. Also, subsection (c) of this 
section did not deny a juvenile equal pro- 
tection of the law because treatment as a 
juvenile was not an inherent right and 
could be modified by the legislature. C.B. 
v. State, 2012 Ark. 220, — S.W.3d — 
(2012). 

Extended Juvenile Jurisdiction 
Hearing. 

Designation of the juvenile for extended 
juvenile jurisdiction (EJJ) was proper be- 
cause his contention that the law-of-the- 
case doctrine barred the juvenile court 
from conducting an extended juvenile ju- 
risdiction hearing and granting the state's 
motion for such a designation was re- 
jected. In the criminal case, that court 
reached no decision and provided no direc- 
tion to the criminal court with respect to 
EJJ designation and upon remand the 
criminal court made no decision regarding 
EJJ designation; nothing required the 
criminal court to make a decision on the 
EJJ issues before the case was transferred 
to juvenile court. N.D. v. State, 2012 Ark. 
265, — S.W.3d — (2012). 

Factors Considered. 

Circuit court did not err in denying a 
juvenile's motion to transfer to the juve- 
nile division under the factors in subsec- 
tion (g) of this section. The juvenile had an 
extensive record, and he brutally am- 
bushed and murdered a guard before es- 
caping from a juvenile facility and car- 
jacking a vehicle. C.B. v. State, 2012 Ark. 
220, — S.W.3d — (2012). 

Jurisdiction. 

Inmate was not entitled to habeas cor- 
pus relief because a trial court did not lack 
jurisdiction over a rape case; pursuant to 
subdivision (c)(1) of this section, the in- 
mate could have been tried in an adult 
court because he was over the age of 16. 
Ashby v. State, 2012 Ark. 48, — S.W.3d — 
(2012). 



Procedure. 

In a hearing on motions to transfer a 
case to juvenile court under this section, 
to dismiss the case, and to declare the 
transfer statute unconstitutional, the cir- 
cuit court abused its discretion by not 
excluding the testimony of two key wit- 
nesses because the state blatantly vio- 
lated Ark. R. Crim. P. 17.1(a) by refusing 
to offer these witnesses' names until late 
in the afternoon before the hearing and, 
as a result, the defense did not have time 
to interview the two witnesses. Although 
the hearing was not a trial or an adjudi- 
cation, the state's dilatory behavior never- 
theless occurred at a pivotal point in the 
proceedings when the circuit court was 
deciding the critical issue of whether the 
juvenile would be tried as a juvenile or as 
an adult. N.D. v. State, 2011 Ark. 282, — 
S.W.3d — (2011). 

Transfer Denied. 

Because a juvenile twice in less than a 
month invited 16-year-old girls into his 
truck, pulled over into isolated areas, and 
forced himself on the victims despite their 
protests, sexually assaulting one and rap- 
ing the other, and because understood 
that his conduct was wrong, and had no 
deficits in his family life that would excuse 
his conduct, pursuant to subsection (g) of 
this section, the juvenile's motions to 
transfer to juvenile court were properly 
denied. Lewis v. State, 2011 Ark. App. 691, 
— S.W.3d — (2011). 

Trial court did not err in denying a 
juvenile's motion to transfer a case to 
juvenile court after the juvenile was 
charged with second-degree murder be- 
cause the trial court complied with the 
mandate of subsection (g) of this section 
by considering all of the required factors 
and making findings for each; the victim 
received eight stab wounds that resulted 
in the victim's death. Cole v. State, 2012 
Ark. App. 281, — S.W.3d — (2012). 

Trial court committed no error in deny- 
ing the juvenile's motion to transfer the 
case to juvenile court, because the trial 
court considered each of the statutory 
factors under subsection (g) of this sec- 
tion, and made written findings; the evi- 
dence demonstrated that the juvenile had 
been offered the services of the juvenile 
system as a result of his commission of 
previous offenses, but rather than comply 
with the juvenile court's rules he persisted 



153 



JUVENILE COURTS AND PROCEEDINGS 



9-27-325 



in delinquent behavior, and the present 
allegations (four counts of aggravated rob- 
bery, four counts of theft of property, one 
count of theft by receiving, and one count 
of aggravated assault) involved serious, 
violent and premeditated conduct that 
raised legitimate concerns relating to the 
protection of society. D.D.R. v. State, 2012 
Ark. App. 329, — S.W.3d — (2012). 

Denial of a request to transfer a first- 
degree murder and terrorist acts case to 
juvenile court under subsection (g) of this 
section was proper because a juvenile had 

9-27-325. Hearings — Generally. 



not taken advantage of opportunities 
given to her, she was charged with very 
serious offenses, she was involved in the 
planning of the offenses, and she was 
involved in gang activity. Because the 
transfer was denied, any arguments relat- 
ing to extended-juvenile-jurisdiction were 
not applicable. M.R.W. v. State, 2012 Ark. 
App. 591, — S.W.3d — , 2012 Ark. App. 
LEXIS 707 (Oct. 24, 2012). 

Cited: C.L. v. State, 2012 Ark. App. 
374, — S.W.3d — (2012). 



CASE NOTES 



Analysis 

Burden of Proof. 
Evidence. 

Burden of Proof. 

Court erred in adjudicating the children 
as dependent-neglected, because the Ar- 
kansas Department of Human Services 
failed to provide sufficient proof that the 
spankings were anything other than mod- 
erate or reasonable, and did not result in 
other than transient pain, and one inci- 
dent that did not result in injury should 
not give rise to the removal of the children 
from the home. Johnson v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 244, — 
S.W.3d — (2012). 

Preponderance of the evidence sup- 
ported the trial court's decision adjudicat- 
ing appellant's children dependent-ne- 
glected under § 9-27-303(18)(A)(v)-(vi) 
and subdivision (h)(2)(B) of this section 
because they were in her care the day she 
was arrested for possession of drug para- 
phernalia and tested positive for metham- 
phetamine. Appellant's conduct placed the 
children at risk of substantial harm. Gaer 
v. Ark. Dep't of Human Servs. & Minor 
Children, 2012 Ark. App. 516, — S.W.3d — 
(2012). 

Evidence. 

Sufficient evidence for purposes of sub- 
division (h)(2)(B) of this section supported 
the trial court's determination that appel- 
lant's children were dependent-neglected 
based on an allegation of abuse by chok- 
ing, because appellant's daughter testified 
that her father held her down on a bed, 



placed his hands around her neck, and 
choked her; she was not able to breathe. 
Her brother confirmed that the choking 
took place and his father ordered him to 
restrain her legs during the incident; a 
family-service worker also testified that 
appellant admitted to her that the inci- 
dent occurred. Lynch v. Ark. Dep't of Hu- 
man Servs., 2012 Ark. App. 149, — S.W.3d 
— (2012). 

The order adjudicating appellant's 
daughter dependent-neglected was af- 
firmed because the daughter had been 
involved in a fight with a male and had 
suffered a head injury, which required 
medical attention, and the daughter 
showed up at a hearing in juvenile court 
without a parent or guardian present. 
Lowe v. Ark. Dep't of Human Servs., 2012 
Ark. App. 155, — S.W.3d — (2012). 

Finding that the adopted daughter was 
dependent-neglected as a result of sexual 
abuse by the father was not clearly erro- 
neous, because the daughter testified that 
her father first touched her inappropri- 
ately when she was eleven years old, the 
daughter testified that the abuse hurt and 
that she would try to pull away, and the 
court expressly found the testimonies of 
the daughter and the certified sexual- 
assault examiner to be both credible and 
consistent with each other. Wells v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 
176, — S.W.3d — (2012). 

Order for the Arkansas Department of 
Human Services to provide a pregnant 
teenager with school uniforms and mater- 
nity clothes was clearly erroneous because 
the lack of such did not pose an immediate 



9-27-327 



FAMILY LAW 



154 



danger to the teenager's health or physi- 
cal well-being under § 12-18-1001(a); 
there was a lack of evidence to support the 
finding that the teenager was at immedi- 
ate risk of severe maltreatment and that 
family services were necessary to prevent 
her removal, the failure to make findings 
necessitated reversal, and the trial court's 
personal recollections were not sufficient. 
In addition, even if the teenager lacked 
school uniforms and maternity clothes be- 
cause her family could not afford them 
and was kept out of school as a result, this 
did not constitute neglect that warranted 
removal from the home. Ark. Dep't of 
Human Servs. v. A.M., 2012 Ark. App. 240, 
— S.W.3d — (2012). 

Order in which the child was adjudi- 
cated dependent-neglected was affirmed 
because there was a true prior finding by 
investigators that appellant and the pa- 



ternal grandfather subjected the child to 
extreme and repeated cruelty; appellant 
and the paternal grandfather would re- 
cord inappropriate interviews with the 
child that were emotionally traumatizing. 
Stoliker v. Ark. Dep't of Human Servs., 
2012 Ark. App. 415, — S.W.3d — (2012). 
Trial court did not err in awarding per- 
manent custody of appellant's child to the 
child's father under subdivision (h)(2)(B) 
of this section because although appellant 
had fully complied at times with the case 
plan and had the child returned to her 
custody, she was still not capable of caring 
for her and acting in her best interest, 
according to the evidence presented. 
Thus, counsel complied with Ark. Sup. Ct. 
& Ct. App. R. 6-9(i), and the appeal was 
without merit. Harris v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 427, — 
S.W.3d — (2012). 



9-27-327. Adjudication hearing. 



CASE NOTES 



Analysis 

Burden of Proof. 
Evidence. 

Burden of Proof. 

Court erred in adjudicating the children 
as dependent-neglected, because the Ar- 
kansas Department of Human Services 
failed to provide sufficient proof that the 
spankings were anything other than mod- 
erate or reasonable, and did not result in 
other than transient pain, and one inci- 
dent that did not result in injury should 
not give rise to the removal of the children 
from the home. Johnson v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 244, — 
S.W.3d — (2012). 

Preponderance of the evidence sup- 
ported the trial court's decision adjudicat- 
ing appellant's children dependent-ne- 
glected because they were in her care the 
day she was arrested for possession of 
drug paraphernalia and tested positive for 
methamphetamine. Because appellant's 
boys were in her apartment alone while 
she was in another apartment using 
drugs, the facts supported the allegation 
under subdivision (a)(1) of this section 
that appellant's conduct constituted ne- 
glect and placed her children at risk of 



substantial harm. Gaer v. Ark. Dep't of 
Human Servs. & Minor Children, 2012 
Ark. App. 516, — S.W.3d — (2012). 

Evidence. 

Sufficient evidence supported the trial 
court's determination that appellant's 
children were dependent-neglected for 
purposes of subdivision (a)(1) of this sec- 
tion based on an allegation of abuse by 
choking, because appellant's daughter 
testified that her father held her down on 
a bed, placed his hands around her neck, 
and choked her; she was not able to 
breathe. Her brother confirmed that the 
choking took place and his father ordered 
him to restrain her legs during the inci- 
dent; a family-service worker also testified 
that appellant admitted to her that the 
incident occurred. Lynch v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 149, — 
S.W.3d — (2012). 

The order adjudicating appellant's 
daughter dependent-neglected was af- 
firmed because the daughter had been 
involved in a fight with a male and had 
suffered a head injury, which required 
medical attention, and the daughter 
showed up at a hearing in juvenile court 
without a parent or guardian present. 
Lowe v. Ark. Dep't of Human Servs., 2012 
Ark. App. 155, — S.W.3d — (2012). 



155 



JUVENILE COURTS AND PROCEEDINGS 



9-27-338 



9-27-332. Disposition — Family in need of services — Generally. 

CASE NOTES 



School Uniforms. 

Order for the Arkansas Department of 
Human Services to provide a pregnant 
teenager with school uniforms and mater- 
nity clothes was clearly erroneous because 
the lack of such did not pose an immediate 
danger to the teenager's health or physi- 
cal well-being under § 12-18-1001(a); 
there was a lack of evidence to support the 
finding that the teenager was at immedi- 
ate risk of severe maltreatment and that 
family services were necessary to prevent 



her removal, the failure to make findings 
necessitated reversal, and the trial court's 
personal recollections were not sufficient. 
In addition, even if the teenager lacked 
school uniforms and maternity clothes be- 
cause her family could not afford them 
and was kept out of school as a result, this 
did not constitute neglect that warranted 
removal from the home. Ark. Dep't of 
Human Servs. v. A.M., 2012 Ark. App. 240, 
— S.W.3d — (2012). 



9-27-333. Disposition — Family in need of services — Limita- 
tions. 

CASE NOTES 



School Uniforms. 

Order for the Arkansas Department of 
Human Services to provide a pregnant 
teenager with school uniforms and mater- 
nity clothes was clearly erroneous because 
the lack of such did not pose an immediate 
danger to the teenager's health or physi- 
cal well-being under § 12-18-1001(a); 
there was a lack of evidence to support the 
finding that the teenager was at immedi- 
ate risk of severe maltreatment and that 
family services were necessary to prevent 



her removal, the failure to make findings 
necessitated reversal, and the trial court's 
personal recollections were not sufficient. 
In addition, even if the teenager lacked 
school uniforms and maternity clothes be- 
cause her family could not afford them 
and was kept out of school as a result, this 
did not constitute neglect that warranted 
removal from the home. Ark. Dep't of 
Human Servs. v. A.M., 2012 Ark. App. 240, 
— S.W.3d — (2012). 



9-27-334. Disposition — Dependent-neglected — Generally. 

CASE NOTES 



Change of Custody. 

Trial court did not err in awarding per- 
manent custody of a mother's children to 
their respective fathers because it was in 
the best interest of the children; the moth- 
er's testimony revealed that neither of her 
teenage children attended school regu- 



larly in her care. One father had obtained 
much-needed dental work for his twins, 
had seen to their other medical needs, and 
both had begun wearing glasses. Thomas 
v. Ark. Dep't of Human Servs., 2012 Ark. 
App. 309, — S.W.3d — (2012). 



9-27-338. Permanency planning hearing. 

CASE NOTES 



Analysis 



Custody Award. 
Failure to Preserve. 



Custody Award. 

Award of permanent custody of the chil- 
dren to their maternal grandmother was 
inappropriate because the first statutory 



9-27-341 



FAMILY LAW 



156 



preference, under subdivision (c)(1) of this 
section, applied to the father since he was 
a parent of the children. The first prefer- 
ence of the statute was not to return the 
child to the parent to from whom he had 
been taken. Mahone v. Ark. Dep't of Hu- 
man Servs., 2011 Ark. 370, — S.W.3d — 
(2011). 

Trial court erred in awarding perma- 
nent custody to maternal grandparents 
because while the children's father had 
some issues to resolve, since the case was 
commenced, a mere six months before the 
trial court awarded the grandparents cus- 
tody, he had no positive drug tests, main- 
tained employment, and was living in an 
approved housing situation with his par- 
ents; the father fell into the first prefer- 



ence category in subsection (c) of this 
section while the grandparents fell into 
the fifth category. Chase v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 311, — 
S.W.3d — (2012). 

Failure to Preserve. 

As parents failed to appeal prior reason- 
able-efforts findings regarding reunifica- 
tion services offered to them pursuant to 
this section and § 9-27-359, an appellate 
court was precluded from reviewing those 
findings for the time periods covered by 
the prior orders. Anderson v. Ark. Dep't of 
Human Servs., 2011 Ark. App. 522, — 
S.W.3d — (2011). 

Cited: Davis v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 419, — S.W.3d — 
(2012). 



9-27-341. Termination of parental rights, 



RESEARCH REFERENCES 



ALR. Construction and Application by 
State Courts of Indian Child Welfare Act 
of 1978 Requirement of Active Efforts to 
Provide Remedial Services, 25 U.S.C.S. 
§ 1912(d). 61 A.L.R.6th 521. 



Validity, Construction, and Application 
of Placement Preferences of State and 
Federal Indian Child Welfare Acts. 63 
A.L.R.6th 429. 



CASE NOTES 



Analysis 

In General. 

Adoptability. 

Aggravated Circumstances. 

Appeal. 

Best Interest of the Juvenile. 

Continuance for Good Cause. 

Evidence. 

Failure to Preserve. 

Findings. 

Grandparents. 

Grounds. 

Imprisonment. 

Standard of Review. 

In General. 

Failure of a trial court to hold a termi- 
nation of parental rights hearing within 
90 days of the filing of the petition, as 
required by subsection (d) of this section, 
did not deprive the trial court of jurisdic- 
tion and the trial court did not err in 
denying the mother's motion to dismiss; 
the mother failed to prove prejudice by the 



delay. Hill v. Ark. Dep't of Human Servs., 
2012 Ark. App. 108, — S.W3d — (2012). 

Adoptability. 

In a termination of parental rights case 
under this section, a trial court properly 
considered adoption evidence in determin- 
ing whether termination was in the chil- 
dren's best interest; testimony from an 
adoption specialist that two children were 
adoptable was sufficient. A mother con- 
tended that the evidence of adoptability 
was not sufficient, but the adoption spe- 
cialist stated that a family had already 
inquired about adopting the children. 
Lowery v. Ark. Dep't of Human Servs. & 
Minor Children, 2012 Ark. App. 478, — 
S.W3d — (2012). 

Aggravated Circumstances. 

Termination of parental rights was ap- 
propriate where juveniles were subjected 
to aggravated circumstances under subdi- 
vision (b)(3)(B)(ix)(a)(3)(£) of this section; 
a mother failed to protect her daughter 
from sexual abuse, and both children were 



157 



JUVENILE COURTS AND PROCEEDINGS 



9-27-341 






subjected to extreme and repeated cruelty. 
It was in the best interest of the children 
to terminate parental rights were adop- 
tion suitability was shown, and the chil- 
dren would have been subject to potential 
harm if returned to the home; since there 
was no appeal from the aggravated cir- 
cumstances decision, there was no need to 
address the alternate ground for termina- 
tion, which was based on the parents' 25 
and 35-year sentences in criminal cases, 
which constituted substantial periods in 
the life of the juveniles. Bowman v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 
477, _ S.W.3d — (2012). 

Appeal. 

Because a mother failed to preserve her 
claims and did not appeal the prior orders 
finding reasonable efforts by the Arkansas 
Department of Human Services, it was in 
the child's best interests to terminate the 
mother's parental rights pursuant to sub- 
division (b)(3) of this section. Kelley v. 
Ark. Dep't of Human Servs., 2011 Ark. 
App. 481, — S.W.3d — (2011). 

Mother's appeal of an order terminating 
her parental rights to her child was dis- 
missed because she failed to appeal from 
an earlier order terminating her parental 
rights based on her consent under subdi- 
vision (b)(3)(B)(v)(a) of this section. Faas 
v. Ark. Dep't of Human Servs., 2011 Ark. 
App. 666, — S.W.3d — (2011). 

Termination of the mother's parental 
rights to her three children was affirmed 
because the mother did not argue that the 
statutory grounds supporting termination 
of her parental rights were not proved by 
clear and convincing evidence and the 
appellate court would not address argu- 
ments raised for the first time on appeal. 
Andrews v. Ark. Dep't of Human Servs. & 
Minor Children, 2012 Ark. App. 22, — 
S.W.3d — (2012). 

Best Interest of the Juvenile. 

Because the children were dependent- 
neglected by virtue of neglect and inad- 
equate supervision, and because neither 
parent had achieved a degree of stability 
that would permit the safe return of the 
children, termination of their parental 
rights under subdivision (b)(3) of this sec- 
tion was in the children's best interest. 
Tucker v. Ark. Dep't of Human Servs., 
2011 Ark. App. 430, — S.W.3d — (2011). 

Termination of a father's parental 
rights was in the children's best interest 



because the father had not demonstrated 
his ability to remain sober in an unstruc- 
tured environment for a significant time 
period, and his disability benefits were 
inadequate to provide a home and all 
other necessities for his children. Al- 
though the father did make commendable 
progress in attaining sobriety, he did not 
demonstrate similar progress in achieving 
sufficient mental health and stability to be 
a parent to his children. Jessup v. Ark. 
Dep't of Human Servs., 2011 Ark. App. 
463, — S.W.3d — (2011). 

Termination of a mother's parental 
rights was in the children's best interest 
because the children had been out of the 
mother's care for over twelve months, and 
she had failed to remedy the conditions 
that had caused them to be removed from 
her custody. The mother moved in with a 
man with a lengthy criminal history, and 
she utterly failed to remedy her drug 
problems, having tested positive for every 
drug screen. Jessup v. Ark. Dep't of Hu- 
man Servs., 2011 Ark. App. 463, — S.W.3d 
— (2011). 

Clear and convincing evidence sup- 
ported a trial court determination that 
termination of parental rights was in the 
best interests of the children under subdi- 
visions (b)(3)(A) and (B) of this section, as 
the parents did not show that they could 
consistently provide the children much- 
needed stability. Christian-Holderfield v. 
Ark. Dep't of Human Servs., 2011 Ark. 
App. 534, — S.W.3d — (2011). 

Evidence supported a trial court's deter- 
mination that termination of parental 
rights was in a child's best interests, as 
the grounds for such relief under subdivi- 
sion (b)(3)(B)(i)(a) of this section were 
met, and the court found that returning 
the child to his mother had the potential 
for unhealthy circumstances and harm. 
Cariker v. Ark. Dep't of Human Servs., 
2011 Ark. App. 574, — S.W.3d — (2011). 

Termination of the mother's parental 
rights to her three children was affirmed 
because there was sufficient testimony 
presented on the issue of adoptability and 
there was evidence presented to establish 
potential harm to the children if returned 
to their mother; the mother was found to 
have subjected the children to aggravated 
circumstances due to their residence in a 
drug premises and her involvement in 
criminal activity. Threadgill v. Ark. Dep't 



9-27-341 



FAMILY LAW 



158 



of Human Servs., 2011 Ark. App. 642, — 
S.W.3d — (2011). 

Order terminating the father's parental 
rights to his daughter was reversed be- 
cause there was no evidence that any 
harm or real risk of potential harm was 
introduced into the child's life by the fa- 
ther's slight lapses in judgment, or that 
her best interests would be served by 
having her father permanently and irre- 
vocably removed from her life. Rhine v. 
Ark. Dep't of Human Servs. & Minor 
Child, 2011 Ark. App. 649, — S.W.3d — 
(2011). 

Termination of the parental rights to 
appellants' three-year old son was af- 
firmed because the court heard evidence 
that the seventeen-year-old father con- 
sumed alcohol in his home, as shown by 
the many empty bottles in his room, yet 
did not attend the drug-and-alcohol as- 
sessment for which he was referred. Lan- 
dis-Maynard v. Ark. Dep't of Human 
Servs., 2011 Ark. App. 673, — S.W.3d — 
(2011). 

It was not clearly erroneous for a trial 
court to find a termination of parental 
rights was in children's best interest, un- 
der subdivision (b)(3)(A) of this section, 
because (1) the mother whose parental 
rights were terminated waived any objec- 
tion to the admissibility of testimony sup- 
porting the finding, and (2) the court ex- 
pressly considered statutorily mandated 
factors. Brabon v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 2, — S.W.3d — 
(2012). 

Termination of the mother's parental 
rights to her son was affirmed because the 
circuit court's focus was appropriately on 
the child's best interests and the risk 
posed to the child in this case, should 
appellant's mental illnesses manifest, was 
not merely a risk of injury, but of death. 
Rossie-Fonner v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 29, — S.W.3d — 
(2012). 

Trial court did not err in terminating a 
mother's parental rights to her child on 
the ground that termination was in the 
child's best interest under subdivision 
(b)(3) of this section because the mother 
failed to accept any meaningful responsi- 
bility for the physical abuse that the child 
was forced to suffer at the hand of her 
boyfriend; she failed to demonstrate that 
she could protect and care for her child. 



Cole v. Ark. Dep't of Human Servs., 2012 
Ark. App. 203, — S.W.3d — (2012). 

Under this section, terminating the fa- 
ther's parental rights was in the best 
interest of the child because the father 
was unable to obtain and maintain stable 
and appropriate housing, employment, in- 
come, and transportation; the autistic 
child had significant special needs; and 
the child had progressed well while in the 
foster mother's care. Hall v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 245, — 
S.W.3d — (2012). 

Termination of a father's parental 
rights was appropriate because a trial 
court relied upon the record in making its 
decision, pursuant to this section; even 
though the father had made some prog- 
ress and had partially completed a case 
plan, he failed to complete drug rehabili- 
tation or achieve sufficient stability to 
parent the child. The father had been 
given a reasonable opportunity to achieve 
the required goals, and there were no 
compelling reasons to give him more time 
to work on reunification; the trial court 
noted the child's need for permanency and 
found that termination was in her best 
interest. Crow v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 313, — S.W.3d — 
(2012). 

Father's parental rights were properly 
terminated because the Arkansas Depart- 
ment of Human Services presented clear 
and convincing evidence supporting ter- 
mination under subdivisions 
(b)(3)(B)(ix)(a)(4), (b)(3)(B)(viii), and 
(b)(3)(B)(ii)(a) of this section. Further, ter- 
mination was in the child's best interest 
as the child was "readily adoptable," and 
there would be a risk of harm, both physi- 
cally and psychologically, if the child were 
placed with the father based on his long 
history of criminal behavior, unstable life- 
style that included drugs, domestic vio- 
lence, homelessness, and child endanger- 
ment. Thus, counsel complied with Ark. 
Sup. Ct. & Ct. App. R. 6-9(i), and the 
appeal was wholly without merit. Span- 
gler v. Ark. Dep't of Human Servs., 2012 
Ark. App. 404, — S.W.3d — (2012). 

Termination of the mother's parental 
rights was affirmed because the mother 
did not challenge the circuit court's deter- 
mination that she was in no position to 
have her children returned to her and the 
circuit court's determination that termi- 
nation was in the children's best interest 



159 



JUVENILE COURTS AND PROCEEDINGS 



9-27-341 



in this case was not clearly erroneous. 
Davis v. Ark. Dep't of Human Servs., 2012 
Ark. App. 419, — S.W.3d — (2012). 

Trial court's finding that termination of 
the mother's rights was in the children's 
best interests was not clearly erroneous; 
the mother did not argue that the children 
were not adoptable, there was evidence 
that she did not regularly visit the chil- 
dren, her housing was inadequate for the 
children, and her employment status indi- 
cated a genuine concern concerning her 
ability to care for the children. Wittig v. 
Ark. Dep't of Human Servs., 2012 Ark. 
App. 502, — S.W.3d — (2012). 

Trial court did not clearly err in finding 
by clear and convincing evidence that it 
was in a child's best interest to terminate 
her mother's parental rights where it was 
clear that the mother's aggressive and 
oppositional behavior could potentially 
harm the health and safety of the child if 
the child were ever returned to her. 
Among other things: (1) the mother's fos- 
ter mother testified that the mother was 
verbally aggressive, refused to comply 
with house rules, and became so unruly 
that the foster mother had to call the 
police; (2) the mother failed to complete 
her trial placement with her child because 
she would not cooperate with the depart- 
ment of human services; and (3) the cir- 
cuit court also specifically found that the 
mother failed to comply with its orders to 
attend school and to eliminate any social 
networking profiles. B.H.I v. Ark. HHS, 
2012 Ark. App. 532, — S.W.3d — (2012). 

Trial court did not err in finding that 
termination of a mother's parental rights 
was in her child's best interest under 
subdivision (b)(3)(A) of this section be- 
cause the mother tested positive for drugs 
during the case, she had no job or her own 
residence, she had encountered criminal 
charges, and she rarely visited the child 
when allowed. Lovell v. Ark. Dep't of Hu- 
man Servs., 2012 Ark. App. 547, — S.W.3d 
— (2012). 

Termination of a mother's parental 
rights was in the child's best interest 
because the children came into state cus- 
tody due to her arrest for drug-related 
offenses, the mother chose to use metham- 
phetamine, which only exacerbated her 
existing drug problem, and a witness rec- 
ommended to the court that the mother's 
parental rights be terminated because the 
children needed permanency. Gutierrez v. 



Ark. Dep't of Human Servs., 2012 Ark. 
App. 575, — S.W.3d — (2012). 

Termination of parental rights was 
proper, because despite efforts of the Ar- 
kansas Department of Human Services, 
reunification would be contrary to the 
health, safety and welfare of the children, 
and termination was in the children's best 
interest; risk of potential harm to the 
children if returned to the father was 
evidenced by his continuing inability to 
maintain employment, stable housing or 
transportation, and his failure to avail 
himself of services offered by the Depart- 
ment. Bradbury v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 680, — S.W.3d — , 
2012 Ark. App. LEXIS 793 (Nov 28, 2012). 

Continuance for Good Cause. 

Termination of the mother's parental 
rights was proper under subsection (d) of 
this section because the mother failed to 
show on appeal that the circuit court 
abused its discretion in denying her re- 
quest for a continuance. In her brief, the 
mother offered no discussion or analysis of 
why the circuit court's denial of her mo- 
tion for continuance constituted an abuse 
of discretion or caused her prejudice; 
rather, she simply stated that by denying 
the motion, the trial court abused its dis- 
cretion. Renfro v. Ark. Dep't of Human 
Servs., 2011 Ark. App. 419, — S.W.3d — 
(2011). 

Evidence. 

There was no error in the finding that 
there was clear and convincing evidence of 
facts warranting the termination of pa- 
rental rights because the circuit court was 
presented with evidence containing direct 
statements from the potential adoptive 
parents that they wanted to adopt the 
children and neither subdivision (b)(3) of 
this section nor case law, required any 
specific quantum of evidence. Renfro v. 
Ark. Dep't of Human Servs., 2011 Ark. 
App. 419, — S.W.3d — (2011). 

Clear and convincing evidence sup- 
ported a determination under subdivi- 
sions (b)(3)(A) and (B) of this section to 
terminate a mother's parental rights over 
her minor children; although she cooper- 
ated with the case plan, she made very 
little progress due to her lack of cognitive 
ability, inability to reason, and low level of 
functioning, and she was unable to pro- 
vide for their basic necessities. Anderson 



9-27-341 



FAMILY LAW 



160 



v. Ark. Dep't of Human Servs., 2011 Ark. 
App. 526, — S.W.3d — (2011). 

Sufficient evidence supported termina- 
tion of the mother's parental rights under 
subdivisions (b)(3)(B)(i)(a) and 

(b)(3)(B)(vii)(a) of this section as she was 
unable to demonstrate that, once she was 
released from jail, she would be able to 
provide a stable home or sufficient income; 
prior to her incarceration, she had failed 
to maintain stable and sufficient income; 
the record was replete with incidents in- 
dicating her poor judgment; the children 
had spent over 75 percent of their lives in 
foster care; and the mother had been 
given ample opportunity to correct the 
problems giving rise to the children's re- 
moval from her home and had not done so. 
Torres v. Ark. Dep't of Human Servs., 2012 
Ark. App. 423, — S.W.3d — (2012). 

Appellant's lack of compliance with the 
case plan and court orders, including his 
failure to submit to drug screens and 
testing positive for drugs, as well as his 
failure to obtain stable housing, employ- 
ment, or income, supported a grant of 
termination of parental rights according 
to the "subsequent other factors" ground 
under subdivision (b)(3)(B)(vii)(a) of this 
section. Because there was no meritorious 
argument that there was insufficient evi- 
dence to terminate his parental rights, 
counsel's motion to withdraw was 
granted. Cotton v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 455, — S.W.3d — 
(2012). 

Trial court did not err in finding clear 
and convincing evidence of facts warrant- 
ing termination of appellants' parental 
rights under subdivision (b)(3) of this sec- 
tion, because the child had been out of the 
home for twelve months due to unclean 
conditions and appellants' drug and alco- 
hol abuse, appellants failed to remedy the 
situation that led to the removal of the 
child, and her continued instability was 
hazardous to her well-being. Bryant v. 
Ark. Dep't of Human Servs., 2012 Ark. 
App. 491, — S.W.3d — (2012). 

Clear and convincing evidence under 
subdivision (b)(3) of this section supported 
the termination of a mother's parental 
rights to her child because the mother lied 
to the trial court about her continued 
involvement with the child's father and 
allowed him to see the child despite orders 
forbidding such contact. Duncan v. Ark. 
Dep't of Human Servs., 2013 Ark. App. 13, 



— S.W.3d — , 2013 Ark. App. LEXIS 8 
(Jan. 16, 2013). 

Failure to Preserve. 

Where a mother failed to appeal prior 
orders in which a trial court determined 
that the social service agency had made 
meaningful efforts towards reunification 
in a parental rights termination proceed- 
ing, the issue of whether reasonable ef- 
forts were made could not be raised on 
appeal as it was waived. Cariker v. Ark. 
Dep't of Human Servs., 2011 Ark. App. 
574, — S.W.3d — (2011). 

Appellant putative father could not ar- 
gue on appeal that the trial court was not 
authorized to terminate his parental 
rights as another man had been named as 
the minor child's legal father due to his 
marriage to the child's mother because 
appellant did not raise that issue before 
the trial court. Johnson v. Ark. HHS, 2012 
Ark. App. 537, — S.W3d — (2012). 

Findings. 

Court properly terminated parental 
rights because the parents' drug use led to 
their inability to care for their children, 
causing them to leave the children in the 
custody of family members who could not 
provide for the children. While the par- 
ents had made progress while incarcer- 
ated, they had not shown the capacity to 
remain drug-free outside of prison or to 
properly provide for their children; they 
admittedly did not follow the case plan or 
take advantage of services offered. Tank- 
ersley v. Ark. Dep't of Human Servs., 2012 
Ark. App. 109, — S.W.3d — (2012). 

Grandparents. 

Termination of the parents' parental 
rights to their daughter was appropriate 
because the issue before the circuit court 
at the termination hearing was a petition 
for termination of parental rights and not 
a custody, guardianship, or adoption peti- 
tion. The parents failed to advance any 
new or persuasive argument that a grand- 
mother's willingness to care for the child 
somehow precluded the termination of 
their parental rights. Ogden v. Ark. Dep't 
of Human Servs., 2012 Ark. App. 577, — 
S.W.3d — (2012). 

Grounds. 

Mother's rights were terminated pursu- 
ant to subdivision (b)(3)(B)(vii)(a) of this 
section because within five months of hav- 



161 



JUVENILE COURTS AND PROCEEDINGS 



9-27-341 



ing her children returned she was ar- 
rested for sixteen felony counts of forgery, 
and three months after that, she was 
charged with six felony drug charges, in- 
cluding selling pain medication prescribed 
for her ill daughter. She was not em- 
ployed, the children could not live at the 
halfway house she entered after being 
released from jail, and the children had 
been out of her custody for a total of nearly 
four years. Stewart v. Ark. Dep't of Hu- 
man Servs., 2011 Ark. App. 577, — S.W.3d 
— (2011). 

Termination of the father's parental 
rights to his three children was affirmed 
because after appellant was allowed un- 
supervised overnight visits with the chil- 
dren, one of the children made new alle- 
gations of inappropriate touching and 
another developed nightmares and other 
issues that resolved when the visits 
stopped. Murray v. Ark. Dep't of Human 
Servs., 2011 Ark. App. 588, — S.W.3d — 
(2011). 

Termination of the parental rights of 
appellants to their two minor children 
was affirmed because despite the services 
provided by the Arkansas Department of 
Human Services, the mother continued to 
abuse alcohol and thus failed to remedy 
the conditions that caused the children's 
removal from her custody. Burnett v. Ark. 
Dep't of Human Servs., 2011 Ark. App. 
596, — S.W.3d — (2011). 

Termination of parental rights was ap- 
propriate because the written judgment 
referenced the Arkansas Department of 
Human Services' petition, there was evi- 
dence to support termination under sub- 
division (b)(3)(B)(vii)(a) of this section, 
and the mother had abandoned the child. 
Nespor v. Ark. Dep't of Human Servs., 
2011 Ark. App. 745, — S.W.3d — (2011). 

Trial court did not err in terminating a 
mother's parental rights to her five chil- 
dren because due to the children testing 
positive on their drug screens, they were 
subjected to aggravated circumstances, as 
defined in subdivision 

(b)(3)(B)(ix)(a)(3)(B)(i) of this section. Re- 
ichard v. Ark. Dep't of Human Servs., 2011 
Ark. App. 762, — S.W.3d — (2011). 

Trial court did not err in terminating a 
mother's parental rights to her child un- 
der subdivision (b)(3)(B)(ix)(a)(3)CB)(j) of 
this section because there were no addi- 
tional services that could be offered to 
make her a fit parent, and the services 



offered failed to give her any insight into 
proper parenting; there were also two 
different occurrences of unexplained inju- 
ries to the child's face. Anderson v. Ark. 
Dep't of Human Servs., 2011 Ark. App. 
791, — S.W.3d — (2011). 

Order terminating appellant's parental 
rights to her children was affirmed be- 
cause the trial court had evidence with 
which to consider the likelihood of the 
children's adoption and made a finding 
that they were likely to be adopted; the 
adoption specialist stated that she had 
been able to find adoptive parents for 
sibling groups. Bayron v. Ark. Dep't of 
Human Servs. & Minor Children, 2012 
Ark. App. 75, — S.W.3d — (2012). 

Trial court did not err under subdivision 
(b)(3)(B)(ix)(a)(3)(£)(i) of this section in 
terminating parents' rights to their child 
because the child had been subjected to 
aggravated circumstances based on 
sexual abuse by her adoptive father; given 
the family's attitudes and lack of progress 
toward reunification after more than one 
year of services, the finding that termina- 
tion was in the child's best interest was 
not erroneous. Draper v. Ark. Dep't of 
Human Servs., 2012 Ark. App. 112, — 
S.W.3d — (2012). 

Termination of the mother's parental 
rights was appropriate pursuant to subdi- 
visions (b)(3)(B)(i)(a) and (vii)(a) of this 
section because she had been unable to 
adequately deal with her methamphet- 
amine addiction, despite services being 
offered; she refused to provide samples for 
several drug tests; she falsified her urine 
on other drug tests; and she had been held 
in contempt numerous times for failing 
drug tests. Fetters v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 152, — S.W.3d — 
(2012). 

Trial court did not err in terminating a 
mother's parental rights under subdivi- 
sion (b)(3)(B)(i)(a) of this section because 
her children were removed from her cus- 
tody due to inadequate supervision, envi- 
ronmental neglect, and her unfitness due 
to alcohol abuse; at the time of the termi- 
nation hearing 13 months later, she was 
not in compliance with the majority of the 
case plan. Lewis v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 154, — S.W.3d — 
(2012). 

Trial court did not err under subdivision 
(b)(3)(B)(vi)(a) of this section in terminat- 
ing a father's parental rights to his three 



9-27-341 



FAMILY LAW 



162 



children because one of the children main- 
tained that he sexually abused her and 
that she did not want to go home with him 
because she believed the abuse would con- 
tinue; a caseworker did not believe that 
the children could be safely placed back 
with him. Blanchard v. Ark. Dep't of Hu- 
man Servs., 2012 Ark. App. 215, — S.W.3d 
— (2012). 

Court properly terminated a mother's 
parental rights because the mother did 
not demonstrate that she was able to 
provide a stable home or sufficient income, 
she did not demonstrate appropriate deci- 
sion-making regarding her relationships 
and roommates, and the children had a 
"high likelihood" of adoption. Reed v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 
369, — S.W.3d — (2012). 

Trial court did not err in terminating 
the mother's parental rights because 
there was sufficient evidence to support a 
finding that termination was in the child's 
best interest, and the Arkansas Depart- 
ment of Human Services had proved that 
the mother had abandoned the child and 
had subjected him to aggravated circum- 
stances under subdivision 
(b)(3)(B)(ix)(a)(3)(J5) of this section and 
§ 9-27-303(1). Thus, counsel complied 
with Ark. Sup. Ct. & Ct. App. R. 6-9(i), and 
the appeal was wholly without merit. 
Fant v. Ark. Dep't of Human Servs., 2012 
Ark. App. 428, — S.W.3d — (2012). 

In a termination of parental rights case 
under this section, even though a mother 
contended that a meaningful effort was 
not made to rehabilitate her and to correct 
the conditions that caused the removal of 
the children, she did not challenge either 
of the grounds upon which the trial court's 
order was based. Moreover, reasonable 
efforts did not require the cleaning of the 
mother's house for her. Lowery v. Ark. 
Dep't of Human Servs. & Minor Children, 
2012 Ark. App. 478, — S.W.3d — (2012). 

Finding that the department of human 
services proved at least one ground for 
termination was not clearly erroneous, 
given in part that (1) there was testimony 
that while the mother had housing, it was 
not stable housing, (2) as of the date of the 
hearing, the only housing she had was 
inadequate to meet the basic needs of the 
children, (3) there was testimony that she 
had a spotty work history and she was at 
her current job for only one month, and (4) 
her visitation with the children was spo- 



radic and it was disruptive to the children 
when she failed to attend visitations. Wit- 
tig v. Ark. Dep't of Human Servs., 2012 
Ark. App. 502, — S.W3d — (2012). 

Trial court's finding that the depart- 
ment of human services proved that a 
father did not maintain meaningful con- 
tact with the children was not clearly 
erroneous, given in part that (1) he only 
saw them four times in the four months 
before his arrest, and in the time that 
followed, his only attempt at contact was 
two letters to the children, (2) nothing 
indicated that he asked for permission to 
see the children or that he took advantage 
of any chances to see them that would 
have been available while he was in 
prison, and (3) although the department 
did not produce evidence that he did not 
provide support, the ground the trial court 
found was met with either a lack of sup- 
port or a lack of meaningful contact. Wit- 
tig v. Ark. Dep't of Human Servs., 2012 
Ark. App. 502, — S.W.3d — (2012). 

Because the department of human ser- 
vices is required to prove only one statu- 
tory ground for termination under subdi- 
vision (b)(3)(B) of this section, it was not 
necessary for the court to consider the 
father's other arguments. Wittig v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 
502, — S.W3d — (2012). 

It was not clearly erroneous for the trial 
court to find that returning the child to 
the father would have subjected her to 
potential harm, given that he never ad- 
vanced to a trial placement or overnight 
visits, nor did he request this, the child 
was bonded to her foster parents, and it 
was reasonable to find that taking her 
from them to live with the father who 
willingly had the bare minimum of contact 
with her would have subjected her to 
harm. Wittig v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 502, — S.W.3d — 
(2012). 

In the two years the child was in foster 
care, the father made two child support 
payments for a total of $200, and he said 
he thought it was better for him to spend 
the money on her; this could have raised 
doubts about his willingness to support 
the child if the child was returned to him. 
Wittig v. Ark. Dep't of Human Servs., 2012 
Ark. App. 502, — S.W3d — (2012). 

Court affirmed the termination of a fa- 
ther's parental rights to his child; there 
was a lack of the payment of child support, 



163 



JUVENILE COURTS AND PROCEEDINGS 



9-27-355 



plus there was evidence of questionable 
judgment on the father's part, including 
supporting the child being returned to the 
mother, although she was unfit to raise 
the child. Wittig v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 502, — S.W.3d — 
(2012). 

Trial court did not err in terminating a 
father's parental rights to his child pursu- 
ant to subdivision (b)(3)(B)(i)(a) of this 
section because the trial court's finding 
that the father had sexually abused his 
girlfriend's daughter and a psychiatrist's 
testimony that he was not a fit parent 
were sufficient evidence of potential harm; 
the alleged sexual abuse was the reason 
for removal more than 12 months before. 
Gipson v. Ark. Dep't of Human Servs., 
2012 Ark. App. 554, — S.W.3d — (2012). 

Court properly terminated parental 
rights because a visit to the parents' home 
showed a garbage-strewn yard, a filthy 
kitchen, a filthy bathroom, and a house 
filled with thick smoke; there was concern 
that the father was tracking sewage into 
the house and that bacteria were being 



brought into the house. Gray v. Ark. Dep't 
of Human Servs., 2013 Ark. App. 24, — 
S.W.3d — , 2013 Ark. App. LEXIS 26 (Jan. 
23, 2013). 

Imprisonment. 

Trial court did not err under subdivision 
(b)(3)(B)(viii) of this section in terminat- 
ing a mother's parental rights to her child 
because by the time she would be released 
from prison, the child would have spent 
more than half of the child's life in foster 
care; even then, there was no guarantee 
that the child would be immediately able 
to return to the mother's custody. Hill v. 
Ark. Dep't of Human Servs., 2012 Ark. 
App. 108, — S.W.3d — (2012). 

Standard of Review. 

Father did not challenge the finding 
that the child was adoptable, and thus the 
court had to examine if the finding that 
returning the child to the father would 
subject her to potential harm was clearly 
erroneous. Wittig v. Ark. Dep't of Human 
Servs., 2012 Ark. App. 502, — S.W.3d — 
(2012). 



9-27-342. Proceedings concerning illegitimate juveniles. 



CASE NOTES 



Findings. 

Termination of a father's parental 
rights to his children was affirmed be- 
cause, despite the father's contention that 
there was a complete lack of evidence that 
the children were adoptable, the chil- 
dren's caseworker, who had worked on the 
case for over a year after its inception, 
testified at the termination hearing that 



the children were adoptable, and the tes- 
timony from a caseworker or an adoption 
specialist that children were adoptable 
was alone sufficient to meet the clear and 
convincing standard to establish the chil- 
dren's adoptability. Thompson v. Ark. 
Dep't of Human Servs., 2012 Ark. App. 
124, — S.W.3d — (2012). 



9-27-355. Placement of juveniles. 

CASE NOTES 



Cited: Andrews v. Ark. Dep't of Human 
Servs. & Minor Children, 2012 Ark. App. 
22, — S.W.3d — (2012). 



9-27-359 FAMILY LAW 

9-27-359. Fifteenth-month review hearing. 

CASE NOTES 



164 



Analysis 

Appeal. 

Failure to Preserve. 

Appeal. 

Given that this section requires a trial 
court to authorize a termination of paren- 
tal rights petition except on limited 
grounds after 15 months, the trial court's 
decision to award permanent-relative cus- 
tody for parents' children, and still pro- 
vide an opportunity for visitation with the 
parents, did not constitute error. Ander- 



son v. Ark. Dep't of Human Servs., 2011 
Ark. App. 522, — S.W.3d — (2011). 

Failure to Preserve. 

As parents failed to appeal prior reason- 
able-efforts findings regarding reunifica- 
tion services offered to them pursuant to 
§ 9-27-338 and this section, an appellate 
court was precluded from reviewing those 
findings for the time periods covered by 
the prior orders. Anderson v. Ark. Dep't of 
Human Servs., 2011 Ark. App. 522, — 
S.W.3d — (2011). 



Subchapter 4 — Division of Dependency-Neglect Representation 



A.C.R.C. Notes. Acts 2012, No. 244, 
§ 29, provided: "DEPENDENCY-NE- 
GLECT REPRESENTATION APPRO- 
PRIATION TRANSFER AUTHORITY. 
The Administrative Office of the Courts 
shall receive approval from the Chief Fis- 
cal Officer of the State and Arkansas Leg- 
islative Council or Joint Budget Commit- 
tee to transfer funds and appropriations 
between Item Numbers (01), (02), (03) (A) 
and (C) and (06) of Section 10 herein for 
the payment of employees and/or contrac- 
tors providing legal services for the Divi- 
sion of Dependency-Neglect Representa- 
tion. 

"Determining the maximum number of 
employees and the maximum amount of 
appropriation and general revenue fund- 
ing for a state agency each fiscal year is 
the prerogative of the General Assembly. 
This is usually accomplished by delineat- 
ing such maximums in the appropriation 
act(s) for a state agency and the general 
revenue allocations authorized for each 



fund and fund account by amendment to 
the Revenue Stabilization law. Further, 
the General Assembly has determined 
that the Administrative Office of the 
Courts may operate more efficiently if 
some flexibility is provided to the Admin- 
istrative Office of the Courts authorizing 
broad powers under this Section. There- 
fore, it is both necessary and appropriate 
that the General Assembly maintain over- 
sight by requiring prior approval of the 
Legislative Council or Joint Budget Com- 
mittee as provided by this section. The 
requirement of approval by the Legisla- 
tive Council or Joint Budget Committee is 
not a severable part of this section. If the 
requirement of approval by the Legisla- 
tive Council or Joint Budget Committee is 
ruled unconstitutional by a court of com- 
petent jurisdiction, this entire section is 
void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



9-27-401. Creation — Representation for children and parents. 



A.C.R.C. Notes. Acts 2012, No. 244, 
§ 28, provided: "CONTRACTING WITH 
PUBLIC DEFENDERS. The Administra- 
tive Office of the Courts Division of Depen- 
dency-Neglect Representation shall have 
the authority to enter into a Professional 



Services Agreement with a person who is 
serving as a part-time Public Defender or 
other part-time State Attorney and paid 
as an employee of the State of Arkansas 
when the Public Defender or other part- 
time State Attorney has been appointed to 



165 



DEPARTMENT OF ARKANSAS STATE POLICE 



9-27-501 



provide Dependency-Neglect Services by a 
Circuit Judge. The part-time Public De- 
fender or other part-time State Attorney 
shall be eligible for additional compensa- 
tion which shall not be construed as ex- 
ceeding the line item maximum for the 
grade of that position when the Adminis- 



trative Office of the Courts reimburses the 
part-time Public Defender or other part- 
time State Attorney for Dependency-Ne- 
glect Representation services performed. 
"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 5 — Extended Juvenile Jurisdiction 
9-27-501. Extended juvenile jurisdiction designation. 

CASE NOTES 



Hearings. 

Designation of the juvenile for extended 
juvenile jurisdiction (E J J) was proper be- 
cause his contention that the law-of-the- 
case doctrine barred the juvenile court 
from conducting an extended juvenile ju- 
risdiction hearing and granting the state's 
motion for such a designation was re- 
jected. In the criminal case, that court 



reached no decision and provided no direc- 
tion to the criminal court with respect to 
EJJ designation and upon remand the 
criminal court made no decision regarding 
EJJ designation; nothing required the 
criminal court to make a decision on the 
EJJ issues before the case was transferred 
to juvenile court. N.D. v. State, 2012 Ark. 
265, — S.W.3d — (2012). 



TITLE 12 

LAW ENFORCEMENT, EMERGENCY 
MANAGEMENT, AND MILITARY AFFAIRS 

SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS 

CHAPTER. 

12. CRIME REPORTING AND INVESTIGATIONS. 

SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND 

PROGRAMS 

CHAPTER 8 
DEPARTMENT OF ARKANSAS STATE POLICE 

Subchapter 2 — Police Officers 



A.C.R.C. Notes. Acts 2012, No. 284, Arkansas State Police Commissioned Of- 



§ 21, provided: "FLAGS. The Department 
of Arkansas State Police is hereby autho- 
rized to award one (1) United States flag 
to the family of any Arkansas State Police 
Commissioned Officer killed in the line of 
duty. This provision will be effective for 



fleers killed in the line of duty after July 1, 
2011. 

"The provisions of this section shall be 
in effect only from July 1, 2012 to June 30, 
2013." 



12-8-210 



LAW ENFORCEMENT, ETC. 



166 



12-8-210. Insurance — Medical and hospital. 



A.C.R.C. Notes. Acts 2012, No. 284, 
§ 19, provided: "UNIFORM EMPLOYEE 
HEALTH INSURANCE PROGRAM RE- 
PORTING. The Department of Arkansas 
State Police shall report monthly to the 
Governor, the Chief Fiscal Officer of the 
State and to the Arkansas Legislative 
Council or Joint Budget Committee re- 
garding the activity and condition for the 
uniformed employee health insurance 
plan. The report shall include, but not 
limited to, the beginning reserve fund 
balance, contributions made during the 
month, claims paid, and the ending fund 



balance of the month. In the event it is 
determined that the cost to adequately 
maintain the uniform employee health 
insurance plan is not feasible within the 
existing resources available to the depart- 
ment, the 88th General Assembly shall 
study the feasibility and desirability of 
discontinuing the self-insurance program 
and instead provide medical and hospital 
insurance to uniform employees through 
the public employees insurance program. 
"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 10 
COMMUNICATIONS SYSTEMS 

Subchapter 3 — Arkansas Public Safety Communications Act of 1985 



A.C.R.C. Notes. Acts 2012, No. 213, 
§ 11, provided: "ENHANCED 9-1-1 SYS- 
TEM. Funds appropriated in Section 9 of 
this Act are to be allocated to support the 
deployment of a hosted supplemental 
9-1-1 database service in Arkansas. This 
supplemental database should allow for 
Arkansans to provide information to 9-1-1 
to be used in emergency scenarios. This 
database service should: 

"a) Collect a variety of formatted data 
relevant to 9-1-1 and first responder 
needs. Among other items, this informa- 
tion should include photographs of the 
citizen, physical descriptions, medical in- 
formation, household data, and emer- 
gency contacts. 

"b) Allow for information to be entered by 
Arkansans via a secure website where 
they can elect to provide as little or as 
much information as they choose. 

"c) Automatically display data provided 
by Arkansas to 9-1-1 call takers for all 



types of phones (Landline, Mobile, VoIP) 
when a call is placed to 9-1-1 from a 
registered and confirmed phone number. 

"d) Support the delivery of citizen infor- 
mation via a secure internet connection to 
all PSAPs within Arkansas. 

"e) Service should work across all 9-1-1 
call taking equipment in Arkansas and 
allow for the easy transfer of information 
into Computer Aided Dispatch (CAD) or 
Records Management Systems (RMS). 

"f) Data should be made available at a 
city, county, state, or national level to help 
protect Arkansans wherever they are. 

"g) Data should be made available to first 
responders. 

"h) Be designed to work in today's envi- 
ronment or future i3 -based systems. 

"i) Demonstrate the ability to assist Ar- 
kansans with functional needs such as the 
deaf and hard of hearing, families with 
autism, physical and mental disabilities, 
and special rescue needs." 



CHAPTER 12 
CRIME REPORTING AND INVESTIGATIONS 



SUBCHAPTER. 

9. Sex Offender Registration Act of 1997. 
17. Adult and Long-Term Care Facility Resident Maltreatment Act. 



167 



CRIME REPORTING AND INVESTIGATIONS 
Subchapter 3 — State Crime Laboratory 



12-12-901 



12-12-312. Records confidential and privileged — Exception — 
Release. 

CASE NOTES 



Photocopying Costs. 

Petitioner failed to show he had a right 
to copies of a report on latent fingerprint 
analysis, because indigency alone did not 
entitle a petitioner to free photocopying, 



and the petitioner had not fully estab- 
lished that the document that he sought 
existed or if it did exist, that it was not 
furnished to his counsel at trial. Hill v. 
State, 2012 Ark. 309, — S.W.3d — (2012). 



12-12-313. Records as evidence — Analyst's testimony. 



CASE NOTES 



Analysis 

Crime Lab Report. 
Right of Confrontation. 

Crime Lab Report. 

State presented substantial evidence 
through testimony from a forensic chemist 
from the state crime laboratory, although 
he did not perform the lab analysis for a 
substance obtained from a controlled buy 
involving defendant, and the lab report 
indicated that the substance contained 
methamphetamine, to show that the sub- 
stance sold by defendant was a controlled 
substance under this section. Jackson v. 
State, 2011 Ark. App. 528, — S.W.3d — 
(2011). 



Right of Confrontation. 

Although defendant argued that the in- 
troduction of a crime laboratory report 
without the chemist being available for 
cross-examination violated his right to 
confront the witnesses against him, defen- 
dant failed to give the required notice 
requesting the analyst's presence. Defen- 
dant cited no authority for his argument 
that he was excused from the notice re- 
quirement because the analyst, who was 
on maternity leave and was not called as a 
witness by the prosecution, appeared on 
the prosecution's witness list. Jones v. 
State, 2011 Ark. App. 683, — S.W.3d — 
(2011). 



Subchapter 9 — Sex Offender Registration Act of 1997 



SECTION. 



12-12-906. Duty to register or verify reg- 
istration generally — Re- 



view of requirements with 
offenders. 



12-12-901. Title. 



RESEARCH REFERENCES 



ALR. Validity and Applicability of State 
Requirement That Person Convicted or 
Indicted of Sex Offenses Be Subject to 
Electronic Location Monitoring, Including 
Use of Satellite or Global Positioning Sys- 
tem. 57 A.L.R.6th 1. 

Validity of State Sex Offender Registra- 
tion Laws Under Ex Post Facto Prohibi- 
tions. 63 A.L.R.6th 351. 



Validity, Construction and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
General Principles, Evidentiary Matters, 
and Assistance of Counsel. 64 A.L.R.6th 1. 

Validity, Construction, and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Initial Classification Determination. 65 



12-12-903 



LAW ENFORCEMENT, ETC. 



168 



A.L.R.6th 1. 

Validity, Construction, and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Claims for Downward Departure. 66 
A.L.R.6th 1. 



Validity, Construction, and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Claims Challenging Upward Departure. 
67 A.L.R.6th 1. 



12-12-903. Definitions. 



CASE NOTES 



Postconviction Relief Denied. 

Denial of postconviction relief under 
Ark. R. Crim. P. 37.1 was proper, because 
correction of the judgment to reflect the 
requirements of the Sex Offender Regis- 
tration Act of 1997 (SORA), §§ 12-12-901 
to 12-12-923, did not demonstrate error so 
fundamental as to render the judgment 
void and subject to collateral attack pur- 
suant to Ark. R. Crim. P. 37.1; since the 



petitioner pled guilty to false imprison- 
ment in the first degree of a minor victim, 
which was a designated crime at the time 
he was sentenced pursuant to subdivision 
(12)(A)(i)(r) of this section, he was subject 
to SORA requirements regardless of 
whether it was reflected on the original 
judgment. Justus v. State, 2012 Ark. 91, 
— S.W.3d — (2012). 



12-12-904. Failure to comply with registration and reporting 
requirements — Refusal to cooperate with assess- 
ment process. 

RESEARCH REFERENCES 



ALR. Validity of State Sex Offender 
Registration Laws Under Ex Post Facto 
Prohibitions. 63 A.L.R.6th 351. 

Validity, Construction and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
General Principles, Evidentiary Matters, 
and Assistance of Counsel. 64 A.L.R.6th 1. 

Validity, Construction, and Application 



of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Claims for Downward Departure. 66 
A.L.R.6th 1. 

Validity, Construction, and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Claims Challenging Upward Departure. 
67 A.L.R.6th 1. 



CASE NOTES 



Analysis 

Construction With Other Law. 
Evidence. 

Construction With Other Law. 

Trial court did not clearly err in finding 
that defendant made no effort to comply 
with sexual-offender registration require- 
ments. Therefore, the trial court properly 
revoked defendant's suspended sentence. 
Muldrew v. State, 2012 Ark. App. 568, — 
S.W3d — (2012). 



Evidence. 

During defendant's trial for failure to 
register as a sex offender, the admission of 
a judgment and commitment order from a 
2004 conviction on a charge of failure to 
register as a sex offender was neither 
prejudicial nor probative because the of- 
fense was a strict-liability offense; at 
worst, the evidence could be viewed as 
irrelevant or cumulative. Reed v. State, 
2012 Ark. App. 225, — S.W3d — (2012). 



169 CRIME REPORTING AND INVESTIGATIONS 12-12-906 

12-12-906. Duty to register or verify registration generally — 
Review of requirements with offenders. 

(a)(l)(A)(i) At the time of adjudication of guilt, the sentencing court 
shall enter on the judgment and commitment or judgment and 
disposition form that the offender is required to register as a sex 
offender and shall indicate whether the: 

(a) Offense is an aggravated sex offense; 

(b) Sex offender has been adjudicated guilty of a prior sex offense 
under a separate case number; or 

(c) Sex offender has been classified as a sexually violent predator. 
(ii) If the sentencing court finds the offender is required to register 

as a sex offender, then at the time of adjudication of guilt the 
sentencing court shall require the sex offender to complete the sex 
offender registration form prepared by the Director of the Arkansas 
Crime Information Center pursuant to § 12-12-908 and shall for- 
ward the completed sex offender registration form to the Arkansas 
Crime Information Center. 

(B)(i) The Department of Correction shall ensure that a sex 
offender received for incarceration has completed the sex offender 
registration form. 

(ii) If the Department of Correction cannot confirm that the sex 
offender has completed the sex offender registration form, the De- 
partment of Correction shall require the sex offender to complete the 
sex offender registration form upon intake, release, or discharge. 

(C)(i) The Department of Community Correction shall ensure that 
a sex offender placed on probation or another form of community 
supervision has completed the sex offender registration form. 

(ii) If the Department of Community Correction cannot confirm 
that the sex offender has completed the sex offender registration 
form, the Department of Community Correction shall require the sex 
offender to complete the sex offender registration form upon intake, 
release, or discharge. 

(D)(i) The Arkansas State Hospital shall ensure that the sex 
offender registration form has been completed for any sex offender 
found not guilty by reason of insanity and shall arrange an evalua- 
tion by Sex Offender Screening and Risk Assessment. 

(ii) If the Arkansas State Hospital cannot confirm that the sex 
offender has completed the sex offender registration form, the Arkan- 
sas State Hospital shall ensure that the sex offender registration 
form is completed for the sex offender upon intake, release, or 
discharge. 

(2)(A) A sex offender moving to or returning to this state from 
another jurisdiction shall register with the local law enforcement 
agency having jurisdiction within three (3) business days after the 
sex offender establishes residency in a municipality or county of this 
state. 

(B)(i) Any person living in this state who would be required to 
register as a sex offender in the jurisdiction in which he or she was 



12-12-906 LAW ENFORCEMENT, ETC. 170 

adjudicated guilty of a sex offense shall register as a sex offender in 
this state whether living, working, or attending school or other 
training in Arkansas. 

(ii) A nonresident worker or student who enters the state shall 
register in compliance with Pub. L. No. 109-248, as it existed on 
January 1, 2007. 

(C) A sex offender sentenced and required to register outside of 
Arkansas shall: 

(i) Submit to assessment by Sex Offender Screening and Risk 
Assessment; 

(ii) Provide a deoxyribonucleic acid (DNA) sample if a sample is 
not already accessible to the State Crime Laboratory; and 

(iii)(a) Pay the mandatory fee of two hundred fifty dollars ($250) to 
be deposited into the DNA Detection Fund established by § 12-12- 
1119 within ninety (90) days from the date of registration. 

(b) Failure to pay the fee required under subdivision 
(a)(2)(C)(iii)(a) of this section is a Class A misdemeanor. 
(b)(1) The registration file of a sex offender who is confined in a 
correctional facility or serving a commitment following acquittal on the 
grounds of mental disease or defect shall be inactive until the registra- 
tion file is updated by the department responsible for supervision of the 
sex offender. 

(2) Immediately prior to the release or discharge of a sex offender or 
immediately following a sex offender's escape or his or her absconding 
from supervision, the Department of Correction, the Department of 
Community Correction, the Arkansas State Hospital, or the Depart- 
ment of Human Services shall update the registration file of the sex 
offender who is to be released or discharged or who has escaped or has 
absconded from supervision. 
(c)(1)(A) When registering a sex offender as provided in subsection 
(a) of this section, the sentencing court, the Department of Correc- 
tion, the Department of Community Correction, the Arkansas State 
Hospital, the Department of Human Services, or the local law 
enforcement agency having jurisdiction shall: 

(i) Inform the sex offender of the duty to submit to assessment and 
to register and obtain the information required for registration as 
described in § 12-12-908; 

(ii) Inform the sex offender that if the sex offender changes 
residency within the state, the sex offender shall give the new 
address and place of employment, education, higher education, or 
training to the Arkansas Crime Information Center in writing no 
later than ten (10) days before the sex offender establishes residency 
or is temporarily domiciled at the new address; 

(iii)(a) Inform the sex offender that if the sex offender changes 
residency to another state or enters another state to work or attend 
school, the sex offender must also register in that state regardless of 
permanent residency. 

(b) The sex offender shall register the new address and place of 
employment, education, higher education, or training with the center 



171 CRIME REPORTING AND INVESTIGATIONS 12-12-906 

and with a designated law enforcement agency in the new state not 
later than three (3) business days after the sex offender establishes 
residence or is temporarily domiciled in the new state; 

(iv) Obtain fingerprints and a photograph of the sex offender if 
these have not already been obtained in connection with the offense 
that triggered registration; 

(v) Obtain a deoxyribonucleic acid (DNA) sample if one has not 
already been provided; 

(vi) Require the sex offender to complete the entire registration 
process, including, but not limited to, requiring the sex offender to 
read and sign a form stating that the duty of the sex offender to 
register under this subchapter has been explained; 

(vii) Inform the sex offender that if the sex offender's address 
changes within the state or to another state due to an eviction, 
natural disaster, or any other unforeseen circumstance, the sex 
offender shall give the new address to the center in writing no later 
than three (3) business days after the sex offender establishes 
residency; 

(viii) Inform a sex offender who has been granted probation that 
failure to comply with the provisions of this subchapter may be 
grounds for revocation of the sex offender's probation; and 

(ix) Inform a sex offender subject to lifetime registration under 
§ 12-12-919 of the duty to: 

(a) Verify registration and obtain the information required for 
registration verification as described in subsections (g) and (h) of this 
section; and 

(b) Ensure that the information required for reregistration verifi- 
cation under subsections (g) and (h) of this section is provided to the 
local law enforcement agency having jurisdiction. 

(B)(i) Any offender required to register as a sex offender must 
provide a deoxyribonucleic acid (DNA) sample, that is, a blood sample 
or saliva sample, upon registering if a sample has not already been 
provided to the State Crime Laboratory. 

(ii) Any offender required to register as a sex offender who is 
entering the State of Arkansas must provide a deoxyribonucleic acid 
(DNA) sample, that is, a blood sample or saliva sample, upon 
registration and must pay the mandatory fee of two hundred fifty 
dollars ($250) to be deposited into the DNA Detection Fund estab- 
lished by § 12-12-1119. 

(2) When updating the registration file of a sex offender, the Depart- 
ment of Correction, the Department of Community Correction, the 
Arkansas State Hospital, or the Department of Human Services shall: 

(A) Review with the sex offender the duty to register and obtain 
current information required for registration as described in § 12- 
12-908; 

(B) Review with the sex offender the requirement that if the sex 
offender changes address within the state, the sex offender shall give 
the new address to the center in writing no later than ten (10) days 



12-12-906 LAW ENFORCEMENT, ETC. 172 

before the sex offender establishes residency or is temporarily domi- 
ciled at the new address; 

(C) Review with the sex offender the requirement that if the sex 
offender changes address to another state, the sex offender shall 
register the new address with the center and with a designated law 
enforcement agency in the new state not later than three (3) business 
days after the sex offender establishes residence or is temporarily 
domiciled in the new state if the new state has a registration 
requirement; 

(D) Require the sex offender to read and sign a form stating that 
the duty of the sex offender to register under this subchapter has 
been reviewed; 

(E) Inform the sex offender that if the sex offender's address 
changes within the state or to another state due to an eviction, 
natural disaster, or any other unforeseen circumstance, the sex 
offender shall give the new address to the center in writing no later 
than three (3) business days after the sex offender establishes 
residency; 

(F) Review with the sex offender the consequences of failure to 
provide any information required by subdivision (b)(2) of this section; 

(G) Inform a sex offender subject to lifetime registration under 
§ 12-12-919 of the duty to: 

(i) Verify registration and report the information required for 
registration verification as described in subsections (g) and (h) of this 
section; and 

(ii) Ensure that the information required for registration verifica- 
tion under subsections (g) and (h) of this section is provided to the 
local law enforcement agency having jurisdiction; and 

(H) Review with a sex offender subject to lifetime registration 
under § 12-12-919 the consequences of failure to verify registration 
under § 12-12-904. 

(d) When registering or updating the registration file of a sexually 
violent predator, in addition to the requirements of subdivision (c)(1) or 
(2) of this section, the sentencing court, the Department of Correction, 
the Department of Community Correction, the Arkansas State Hospi- 
tal, the Department of Human Services, or the local law enforcement 
agency having jurisdiction shall obtain documentation of any treatment 
received for the mental abnormality or personality disorder of the 
sexually violent predator. 

(e) Any sex offender working, enrolled, or volunteering in a public or 
private elementary, secondary or postsecondary school, or institution of 
training shall notify the center of that status and shall register with the 
local law enforcement agency having jurisdiction over that campus. 

(f)(1) An offender required to register pursuant to this subchapter 
shall not change his or her name unless the change is: 

(A) Incident to a change in the marital status of the sex offender; 
or 

(B) Necessary to effect the exercise of the religion of the sex 
offender. 



173 CRIME REPORTING AND INVESTIGATIONS 12-12-906 

(2) The change in the sex offender's name shall be reported to the 
Director of the Arkansas Crime Information Center within ten (10) 
calendar days after the change in name. 

(3) A violation of this subsection is a Class C felony. 

(g)(1) Except as provided in subsection (h) of this section, a sex 
offender subject to lifetime registration under § 12-12-919 shall report 
in person every six (6) months after registration to the local law 
enforcement agency having jurisdiction to verify registration. 

(2) The local law enforcement agency having jurisdiction may deter- 
mine the appropriate times and days for reporting by the sex offender, 
and the determination shall be consistent with the reporting require- 
ments of subdivision (g)(1) of this section. 

(3) Registration verification shall include reporting any change to 
the following information concerning the sex offender: 

(A) Name; 

(B) Social security number; 

(C) Age; 

(D) Race; 

(E) Gender; 

(F) Date of birth; 

(G) Height; 
(H) Weight; 

(I) Hair and eye color; 

(J)(i) Address of any permanent residence and address of any 
current temporary residence within this state or out of this state, 
including a rural route address and a post office box. 

(ii) A post office box shall not be provided in lieu of a physical 
residential address; 

(K) Date and place of any employment; 

(L) Vehicle make, model, color, and license tag number that the sex 
offender owns, operates, or to which he or she has access; 

(M)(i) Fingerprints. 

(ii) If the local law enforcement agency having jurisdiction cannot 
confirm that the sex offender's fingerprints are contained in the 
automated fingerprint identification system, the local law enforce- 
ment agency having jurisdiction shall: 

(a) Take the sex offender's fingerprints; and 

(b) Submit the fingerprints to the center and to the Department of 
Arkansas State Police; 

(N)(i) Photograph. 

(ii) The local law enforcement agency having jurisdiction shall 
take a photograph of the sex offender at each registration verification 
and submit the photograph to the center; 

(O) All computers or other devices with Internet capability to 
which the sex offender has access; 

(P) All email addresses used by the sex offender; and 

(Q) All user names, screen names, or instant message names that 
are used by the sex offender to communicate in real time with another 
person using the Internet. 



12-12-906 LAW ENFORCEMENT, ETC. 174 

(4) If the sex offender is enrolled or employed at an institution of 
higher education in this state, the sex offender shall also report to the 
local law enforcement agency having jurisdiction: 

(A) The name and address of each institution of higher education 
where he or she is enrolled or employed, including each campus 
attended; 

(B) The county where each campus is located; and 

(C) His or her enrollment or employment status. 

(5) If the place of residence of the sex offender is a motor vehicle, 
trailer, mobile home, modular home, or manufactured home, the sex 
offender shall report the following information concerning the motor 
vehicle, trailer, mobile home, modular home, or manufactured home: 

(A) Vehicle identification number; 

(B) License tag number; 

(C) Registration number; and 

(D) A description, including color scheme. 

(6) If the place of residence of the sex offender is a vessel, live-aboard 
vessel, or houseboat, the sex offender shall report the following infor- 
mation concerning the vessel, live-aboard vessel, or houseboat: 

(A) Hull identification number; 

(B) Manufacturer's serial number; 

(C) Name; 

(D) Registration number; and 

(E) A description, including color scheme. 

(h)(1) A sexually violent predator subject to lifetime registration 
under § 12-12-919 shall report in person every three (3) months after 
registration to the local law enforcement agency having jurisdiction to 
verify registration. 

(2) The local law enforcement agency having jurisdiction may deter- 
mine the appropriate times and days for reporting by the sexually 
violent predator, and the determination shall be consistent with the 
reporting requirements of subdivision (h)(1) of this section. 

(3) Registration verification shall include reporting any change to 
the following information concerning the sexually violent predator: 

(A) Name; 

(B) Social security number; 

(C) Age; 

(D) Race; 

(E) Gender; 

(F) Date of birth; 

(G) Height; 
(H) Weight; 

(I) Hair and eye color; 

(J)(i) Address of any permanent residence and address of any 
current temporary residence within this state or out of this state, 
including a rural route address and a post office box. 

(ii) A post office box shall not be provided in lieu of a physical 
residential address; 



175 CRIME REPORTING AND INVESTIGATIONS 12-12-906 

(K) Date and place of any employment; 

(L) Vehicle make, model, color, and license tag number that the 
sexually violent predator owns, operates, or to which he or she has 
access; 

(M)(i) Fingerprints. 

(ii) If the local law enforcement agency having jurisdiction cannot 
confirm that the sexually violent predator's fingerprints are con- 
tained in the automated fingerprint identification system, the local 
law enforcement agency having jurisdiction shall: 

(a) Take the sexually violent predator's fingerprints; and 

(b) Submit the fingerprints to the center and to the Department of 
Arkansas State Police; 

(N)(i) Photograph. 

(ii) The local law enforcement agency having jurisdiction shall 
take a photograph of the sexually violent predator at each registra- 
tion verification and submit the photograph to the center; 

(O) All computers or other devices with Internet capability to 
which the sex offender has access; 

(P) All email addresses used by the sex offender; and 

(Q) All user names, screen names, or instant message names that 
are used by the sex offender to communicate in real time with another 
person using the Internet. 

(4) If the sexually violent predator is enrolled or employed at an 
institution of higher education in this state, the sexually violent 
predator shall also report to the local law enforcement agency having 
jurisdiction: 

(A) The name and address of each institution of higher education 
where he or she is enrolled or employed, including each campus 
attended; 

(B) The county where each campus is located; and 

(C) His or her enrollment or employment status. 

(5) If the place of residence of the sexually violent predator is a motor 
vehicle, trailer, mobile home, modular home, or manufactured home, 
the sexually violent predator shall report the following information 
concerning the motor vehicle, trailer, mobile home, modular home, or 
manufactured home: 

(A) Vehicle identification number; 

(B) License tag number; 

(C) Registration number; and 

(D) A description, including color scheme. 

(6) If the place of residence of the sexually violent predator is a 
vessel, live-aboard vessel, or houseboat, the sexually violent predator 
shall report the following information concerning the vessel, live- 
aboard vessel, or houseboat: 

(A) Hull identification number; 

(B) Manufacturer's serial number; 

(C) Name; 

(D) Registration number; and 



12-12-906 



LAW ENFORCEMENT, ETC. 



176 



(E) A description, including color scheme. 
(i) Within three (3) days after verifying the registration of a sex 
offender under subsection (g) of this section or a sexually violent 
predator under subsection (h) of this section, the local law enforcement 
agency having jurisdiction shall report by written or electronic means 
all information obtained from or provided by the sex offender or 
sexually violent predator to the center. 



History. Acts 1997, No. 989, § 5; 1999, 
No. 1353, § 4; 2001, No. 202, §§ 1-3; 
2001, No. 1089, § 1; 2001, No. 1743, § 5; 
2003, No. 1185, § 18; 2003, No. 1265, 
§ 4[3]; 2003 (2nd Ex. Sess.), No. 21, § 4; 
2005, No. 1962, § 34; 2006 (1st Ex. Sess.), 
No. 4, § 3; 2007, No. 394, § 5; 2011, No. 
143, §§ 1, 2; 2011, No. 1009, § 1. 

A.C.R.C. Notes. As enacted, Acts 2011, 
No. 143, contained two sections desig- 
nated as § 1. 

Publisher's Notes. This section is be- 
ing set out to reflect a stylistic correction 
in (a)(2)(C)(iii)(fe). 



Amendments. The 2011 amendment 
by No. 143 deleted "beginning April 7, 
2006" following "of this section" in (g)(1); 
inserted (O) through (Q) in (g)(3) and 
(h)(3); inserted "of higher education where 
he or she is enrolled or employed" in 
(g)(4)(A) and (h)(4)(A); and deleted "Begin- 
ning on March 21, 2007" at the beginning 
of (h)(1). 

The 2011 amendment by No. 1009 
added (a)(2)(C)(iii)(6); and added "within 
ninety (90) days from the date of registra- 
tion" to the end of (a)(2)(C)(iii)(a). 



RESEARCH REFERENCES 



ALR. Validity of State Sex Offender 
Registration Laws Under Ex Post Facto 
Prohibitions. 63 A.L.R.6th 351. 

Validity, Construction and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
General Principles, Evidentiary Matters, 
and Assistance of Counsel. 64 A.L.R.6th 1. 

Validity, Construction, and Application 



of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Claims for Downward Departure. 66 
A.L.R.6th 1. 

Validity, Construction, and Application 
of State Sex Offender Registration Stat- 
utes Concerning Level of Classification — 
Claims Challenging Upward Departure. 
67 A.L.R.6th 1. 



CASE NOTES 



Postconviction Relief Denied. 

Denial of postconviction relief under 
Ark. R. Crim. P. 37.1 was proper, because 
correction of the judgment to reflect the 
requirements of the Sex Offender Regis- 
tration Act of 1997 (SORA), §§ 12-12-901 
to 12-12-923, did not demonstrate error so 
fundamental as to render the judgment 
void and subject to collateral attack pur- 



suant to Ark. R. Crim. P. 37.1; since the 
petitioner pled guilty to false imprison- 
ment in the first degree of a minor victim, 
which was a designated crime at the time 
he was sentenced pursuant to § 12-12- 
903(12)(A)(i)(r), he was subject to SORA 
requirements regardless of whether it was 
reflected on the original judgment. Justus 
v. State, 2012 Ark. 91, — S.W.3d — (2012). 



177 CRIME REPORTING AND INVESTIGATIONS 12-12-1715 

12-12-917. Evaluation protocol — Sexually violent predators — 
Juveniles adjudicated delinquent — Examiners. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- tion — Initial Classification Determina- 
cation of State Sex Offender Registration tion. 65 A.L.R.6th 1. 
Statutes Concerning Level of Classifica- 

12-12-919. Termination of obligation to register. 

CASE NOTES 

Registration Requirements. the probationer is entitled to relief upon a 

As the Arkansas Code Revision Com- showing by a preponderance of the evi- 

mission substantively altered Act no. 21, dence that he or she has not been adjudi- 

Ark. Acts 2005 in its codification of subdi- cated of a sex offense during that 15-year- 

vision (b)(2)(A) of this section, in a manner time period and he or she is not likely to 

that changed its meaning, a probationer pose a threat to the safety of others. Har- 

may apply to terminate his or her obliga- rell v state, 2012 Ark. 421, — S.W.3d — , 

tion to register as a sex offender 15 years 2 012 Ark. LEXIS 438 (Nov. 8, 2012). 
after being placed on probation. Further, 

12-12-923. Electronic monitoring of sex offenders. 

RESEARCH REFERENCES 

ALR. Validity and Applicability of State Electronic Location Monitoring, Including 
Requirement That Person Convicted or Use of Satellite or Global Positioning Sys- 
Indicted of Sex Offenses Be Subject to tern. 57 A.L.R.6th 1. 

Subchapter 17 — Adult and Long-Term Care Facility Resident 

Maltreatment Act 

section. tion of the Department of 

12-12-1715. Rights of subject of report — Human Services — Notice 

Investigative determina- of finding — Appeal. 

12-12-1715. Rights of subject of report — Investigative determi- 
nation of the Department of Human Services — 
Notice of finding — Appeal. 

(a) Upon completion of an investigation, the Department of Human 
Services shall determine that an allegation of adult maltreatment or 
long-term care facility maltreatment is either: 
(1)(A) Unfounded, a finding that shall be entered if the allegation is 
not supported by a preponderance of the evidence. 

(B)(i) An unfounded report shall be expunged one (1) year after the 
completion of the investigation. 

(ii) Demographic information may be retained for statistical pur- 
poses; or 



12-12-1715 LAW ENFORCEMENT, ETC. 178 

(2)(A) Founded, a finding that shall be entered if the allegation is 
supported by a preponderance of the evidence. 

(B) A determination of founded but exempt shall be entered on a 
report if an adult practicing his or her religious beliefs is receiving 
spiritual treatment under § 5-28-105 or § 12-12-1704. 
(b)(1)(A) After making an investigative determination, the depart- 
ment shall notify in writing within ten (10) business days: 

(i)(a) The person identified as the offender. 

(b) However, in cases of unfounded self-neglect, no notice is re- 
quired; 

(ii) Either the: 

(a) Person identified as the maltreated person; 

(b) Legal guardian of the maltreated person; or 

(c) Natural or legal guardian of a long-term care facility resident 
under eighteen (18) years of age; 

(iii) The current administrator of the long-term care facility if the 
incident occurred in a long-term care facility; and 

(iv) If known by the Office of Long-Term Care, the administrator of 
the long-term care facility that currently employs the offender if 
different from the long-term care facility in which the incident 
occurred. 

(B) If the investigation determines that the report is founded, 
notification to the offender shall be by process server or by certified 
mail, restricted delivery. 

(2) The notification under subdivision (b)(1) of this section shall 
include the following: 

(A) The investigative determination, exclusive of the source of the 
notification, including the nature of the allegation and the date and 
time of occurrence; 

(B) A statement that an offender of a founded report has the right 
to an administrative hearing upon a timely request; 

(C) A statement that the request for an administrative hearing 
shall be made to the department within thirty (30) days of receipt of 
the notice of determination; 

(D) A statement that the administrative hearing will be by tele- 
phone hearing unless the offender requests an in-person hearing 
within thirty (30) days after the date of receipt of notice of the 
determination; 

(E) A statement of intent to report in writing after the offender has 
had an opportunity for an administrative hearing the founded 
investigative determination to: 

(i) The Adult and Long-term Care Facility Resident Maltreatment 
Central Registry; and 
(ii) Any applicable licensing authority; 

(F) A statement that the offender's failure to request an adminis- 
trative hearing in writing within thirty (30) days from the date of 
receipt of the notice will result in submission of the investigative 
report, including the investigative determination, to: 



179 CRIME REPORTING AND INVESTIGATIONS 12-12-1715 

(i) The registry; and 

(ii) Any applicable licensing authority; 

(G) The consequences of waiving the right to an administrative 
hearing; 

(H) The consequences of a finding by a preponderance of the 
evidence through the administrative hearing process that the mal- 
treatment occurred; 

(I) The fact that the offender has the right to be represented by an 
attorney at the offender's own expense; and 

(J) The name of the person making the notification, his or her 
occupation, and the location at which he or she can be reached. 
(c)(1) The administrative hearing process shall be completed within 
one hundred twenty (120) days from the date of the receipt of the 
request for a hearing unless waived by the offender. 

(2) The department shall hold the administrative hearing at a 
reasonable place and time. 

(3) For an incident occurring in a long-term care facility, the depart- 
ment may not make a finding that an offender has neglected a 
long-term care facility resident if the offender demonstrates that the 
neglect was caused by factors beyond the control of the offender. 

(4) A delay in completing the administrative hearing process that is 
attributable to the offender shall not count against the time limit in 
subdivision (c)(1) of this section. 

(5) Failure to complete the administrative hearing process in a 
timely fashion shall not prevent the department or a court from: 

(A) Reviewing the investigative determination of jurisdiction; 

(B) Making a final agency determination; or 

(C) Reviewing a final agency determination under the Arkansas 
Administrative Procedure Act, § 25-15-201 et seq. 

(6) If any party timely requests an in-person administrative hearing, 
the hearing officer may notify the parties that the hearing will be 
conducted by video conference. 

(d) [Repealed.] 

(e) If the department's investigative determination of founded is 
upheld during the administrative hearing process or if the offender does 
not timely appeal for or waives the right to an administrative hearing, 
the department shall report the investigative determination in writing 
within ten (10) business days to: 

(1) The offender; 

(2) The current administrator of the long-term care facility if the 
incident occurred in a long-term care facility; 

(3) The administrator of the long-term care facility that currently 
employs the offender if different from the long-term care facility in 
which the incident occurred; 

(4) The appropriate licensing authority; 

(5) The registry; 

(6) The maltreated person or the legal guardian of the maltreated 
person; and 



12-14-106 LAW ENFORCEMENT, ETC. 180 

(7) If required under § 21-15-110, the employer of any offender if the 
offender is in a designated position with a state agency. 

History. Acts 2005, No. 1812, § 1; Amendments. The 2011 amendment 
2009, No. 525, § 3; 2011, No. 1139, § 1. deleted (d). 

Publisher's Notes. This section is be- 
ing set out to correct an error in the 2011 
supplement. 

CHAPTER 14 
STATE CAPITOL POLICE 

12-14-106. Additional salary payments. 

A.C.R.C. Notes. Acts 2012, No. 286, "IV. Senior Certificate — $1,200 annu- 

§ 12, provided: "STATE CAPITOL PO- ally 

LICE. In the event that sufficient rev- "Payment of such funds may be made 

enues, in the judgment of the Secretary of monthly, quarterly, semiannually or an- 

State exist, the Secretary is hereby autho- nually depending upon the availability of 

nzed to make additional salary payments revenue s and shall be restricted to the 

from such funds to those employees who followi c i assinca ti ns: 
have attained law enforcement certmca- M1 ro , ^ ., , n v ™ . r 
tion above the basic certificate level, as *■ Sec. of State Capitol Police Chief 

defined by the Arkansas Commission on 2 « Sec. of State Police Sergeant 

Law Enforcement Standards. It is the 3 - Sec. of State Corporal 

intent of this Section that such payment " 4 - Se c of State Assistant Chief Capitol 

shall be optional, at the discretion of the Police Captain 

Secretary, dependent on sufficient rev- "Payments made under this Section 
enues and shall not be implemented using which are awarded as partial or lump sum 
funds specifically set aside for other pro- payments shall not be considered as sal- 
grams within the Department. a ry for purposes of retirement benefits but 

"Employees shall be eligible for all or a sna ll be subject to withholding of all ap- 
portion of additional salary payments p li ca ble federal and state taxes. Payments 
scheduled as follows: made under this Section shall not be con _ 
^ I. General Certificate - $ 300 annu- stmed ag exceeding the maximum annual 

3 'II. Intermediate Certificate - $ 600 sa }^ of the ™P lc ^f ". 

annuallv The provisions of this section shall be 

"III. Advanced Certificate — $ 900 an- in effect only from July 1, 2012 through 
nually June 30, 2013." 

CHAPTER 18 
CHILD MALTREATMENT ACT 

Subchapter 1 , — General Provisions 

12-18-103. Definitions. 

CASE NOTES 

Neglect. teenager with school uniforms and mater- 

Order for the Arkansas Department of nity clothes was clearly erroneous because 
Human Services to provide a pregnant the lack of such did not pose an immediate 



181 



CHILD MALTREATMENT ACT 



12-18-908 



danger to the teenager's health or physi- 
cal well-being under § 12-18-1001(a); 
there was a lack of evidence to support the 
finding that the teenager was at immedi- 
ate risk of severe maltreatment and that 
family services were necessary to prevent 
her removal, the failure to make findings 
necessitated reversal, and the trial court's 
personal recollections were not sufficient. 



In addition, even if the teenager lacked 
school uniforms and maternity clothes be- 
cause her family could not afford them 
and was kept out of school as a result, this 
did not constitute neglect that warranted 
removal from the home. Ark. Dep't of 
Human Servs. v. A.M., 2012 Ark. App. 240, 
— S.W.3d — (2012). 



Subchapter 7 — Investigative Findings 



12-18-701. Generally. 



CASE NOTES 



Admission Error, But No Prejudice. 

Although admission of portions of an 
investigator's report to the prosecutor 
were hearsay and were admitted in error, 
the child's grandmother failed to show 
prejudice because the trial court's ruling 
showed that it relied on the child's state- 
ments in a recorded interview in deter- 
mining that she was dependent neglected 



on the basis of sexual abuse. The DVD of 
the interview was entered into evidence 
independently and constituted sufficient 
evidence to support the dependency ne- 
glect adjudication without any reference 
to the prosecuting attorney's report. 
Berthelot v. Ark. Dep't of Human Servs., 
2012 Ark. App. 249, — S.W.3d — (2012). 



Subchapter 8 — Administrative Hearings 

12-18-803. Privileged communications as evidence — Excep- 
tion. 

CASE NOTES 

Cited: Riley v. State, 2012 Ark. 462, — 
S.W.3d — , 2012 Ark. LEXIS 503 (Dec. 13, 
2012). 

Subchapter 9 — Child Maltreatment Central Registry 

12-18-908. Removal of name from the Child Maltreatment Cen- 
tral Registry. 

CASE NOTES 



Child Custody. 

In denying appellant father's motion to 
change child custody, the trial court did 
not err in failing to apply § 9- 13- 10 1(c)(1), 
(2)' s presumption that it was not in the 
best interest of a child to remain in the 
custody of an abusive parent because the 
record was completely devoid of any evi- 
dence of domestic violence. While appellee 



mother was placed on the child-maltreat- 
ment registry for a period of time pursu- 
ant to subdivision (b)(2) of this section for 
subjecting the child to a home that was 
filthy and infested with roaches, her poor 
housekeeping was not a form of domestic 
violence. Loftis v. Nazario, 2012 Ark. App. 
98, — S.W.3d — (2012). 



12-18-1001 LAW ENFORCEMENT, ETC. 

Subchapter 10 — Protective Custody 



182 



12-18-1001. Protective custody generally. 

CASE NOTES 



School Uniforms. 

Order for the Arkansas Department of 
Human Services to provide a pregnant 
teenager with school uniforms and mater- 
nity clothes was clearly erroneous because 
the lack of such did not pose an immediate 
danger to the teenager's health or physi- 
cal well-being under subsection (a) of this 
section; there was a lack of evidence to 
support the finding that the teenager was 
at immediate risk of severe maltreatment 
and that family services were necessary to 



prevent her removal, the failure to make 
findings necessitated reversal, and the 
trial court's personal recollections were 
not sufficient. In addition, even if the 
teenager lacked school uniforms and ma- 
ternity clothes because her family could 
not afford them and was kept out of school 
as a result, this did not constitute neglect 
that warranted removal from the home. 
Ark. Dep't of Human Servs. v. A.M., 2012 
Ark. App. 240, — S.W.3d — (2012). 



SUBTITLE 3. CORRECTIONAL FACILITIES AND 

PROGRAMS 

CHAPTER 27 

DEPARTMENT OF CORRECTION — DEPARTMENT OF 
COMMUNITY CORRECTION 



12-27-103. Department of Correction 
duties. 



Creation — Powers and 



A.C.R.C. Notes. Acts 2012, No. 266, 
§20, provided: "JUVENILE SEX OF- 
FENDER ASSESSMENT. The Arkansas 
Department of Correction is authorized to 
enter into a cooperative agreement with a 
qualified state treatment and assessment 
agency to conduct assessments of juvenile 
sex or child offenders as required by pro- 
visions of AC A 12-12-901 et. seq. and pay 
for services upon receipt of invoice. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 266, § 35, provided: "ES- 



SENTIAL SERVICES STIPEND. The Ar- 
kansas Department of Correction (ADC) 
may award additional compensation to 
those exempt employees who are mem- 
bers of the emergency response unit. 
These employees are eligible to receive up 
to 3% per hour additional compensation 
for the actual number of hours that an 
employee spends on an emergency re- 
sponse action. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



12-27-114. Inmates in county jails 
— Medical care. 



Reimbursement of county 



A.C.R.C. Notes. Acts 2012, No. 266, 
§ 15, provided: "COUNTY REIMBURSE- 
MENT RATE RESTRICTION. Notwith- 
standing any other provision of law or 
departmental commitment which may ex- 



ist to the contrary, the Board of Correc- 
tions shall not increase any reimburse- 
ment rate for payments made to any 
county for the purpose of reimbursing the 
expenses of the care and custody of state 



183 



CORRECTION AND COMMUNITY CORRECTION 12-27-136 



inmates, without first seeking and receiv- 
ing the approval of the Governor and the 
Chief Fiscal Officer of the State. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 266, § 16, provided: 
"COUNTY JAIL REIMBURSEMENT. In 
the event the Department of Correction 
cannot accept inmates from county jails 
due to insufficient bed space, the Depart- 
ment shall reimburse the counties at a 
rate determined by the Chief Fiscal Offi- 
cer of the State, after consultation with 
the Division of Legislative Audit and the 
Department of Correction, and upon ap- 
proval by the Governor, until the appro- 
priation and funding for such purpose, is 
exhausted. The reimbursement rate shall 
include the county's cost of transporting 
the inmates to the department. The ap- 
propriation provided by Item (06) of Sec- 
tion 3 may be used for contracts with 
county jails for pre release inmates. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 266, §31, provided: 
"COUNTY JAIL INVOICE SUMMARY. 
The Departments of Correction and Com- 
munity Correction, shall at a minimum 
and on a fiscal year basis, prepare and 



post on the applicable agency web site, a 
monthly summary of county jail reim- 
bursement invoices prepared and for- 
warded to each county sheriff for verifica- 
tion by the Departments and for payment 
from the County Jail Reimbursement 
Fund. In addition, the report shall include 
a summary of invoices returned by each 
county for payment for previous months 
within the fiscal year, the amounts paid, 
and any balances owed. Each fiscal year- 
end report shall be maintained on the web 
sites for a period of no less than three (3) 
years." 

Acts 2012, No. 285, § 19, provided: 
"COUNTY JAIL INVOICE SUMMARY. 
The Departments of Correction and Com- 
munity Correction, shall at a minimum 
and on a fiscal year basis, prepare and 
post on the applicable agency web site, a 
monthly summary of county jail reim- 
bursement invoices prepared and for- 
warded to each county sheriff for verifica- 
tion by the Departments and for payment 
from the County Jail Reimbursement 
Fund. In addition, the report shall include 
a summary of invoices returned by each 
county for payment for previous months 
within the fiscal year, the amounts paid, 
and any balances owed. Each fiscal year- 
end report shall be maintained on the web 
sites for a period of no less than three (3) 
years." 



12-27-130. Reimbursement of county. 



A.C.R.C. Notes. Acts 2012, No. 266, 
§ 15, provided: "COUNTY REIMBURSE- 
MENT RATE RESTRICTION. Notwith- 
standing any other provision of law or 
departmental commitment which may ex- 
ist to the contrary, the Board of Correc- 
tions shall not increase any reimburse- 
ment rate for payments made to any 



county for the purpose of reimbursing the 
expenses of the care and custody of state 
inmates, without first seeking and receiv- 
ing the approval of the Governor and the 
Chief Fiscal Officer of the State. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



12-27-136. Services and equipment. 



A.C.R.C. Notes. Acts 2012, No. 137, 
§ 3, provided: "ASSISTANCE PROVI- 
SION. The Department of Correction and 
the Department of Community Correction 
may provide services, furnishings, equip- 
ment and office space to assist the Parole 



Board in fulfilling the purposes for which 
the Board was created by law. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



12-27-141 



LAW ENFORCEMENT, ETC. 



184 



12-27-141. Department of Correction Annual Report, 



A.C.R.C. Notes. Acts 2012, No. 266, 
§ 21, provided: "INMATE COST REPORT- 
ING — STATE FACILITIES. 

"(a) Within 90 days of the close of each 
state fiscal year, the Arkansas Depart- 
ment of Correction (ADC) shall submit to 
the Arkansas Legislative Council a report 
of all direct and indirect costs incurred by 
the State of Arkansas in housing and 
caring for inmates incarcerated in the 
State's facilities. Such costs shall be cal- 
culated and reported in total for the De- 
partment and in total by each facility. The 
report shall also reflect overall cost per 
inmate per day, cost per inmate per day 
for each facility, overall cost per bed per 
day, and cost per bed per day for each 
facility. 

"(b) In compiling costs and reporting to 
the Arkansas Legislative Council in accor- 
dance with subsection (a) of this section of 
this Act, the Department of Correction 
shall: 

"(1) Record all expenditures in a man- 
ner that provides for the association of 
costs with each facility. Costs not directly 
attributable to a particular facility (over- 
head, administration, treatment, etc.) 
shall be allocated to each facility on the 
basis of inmate population. 

"(2) Maintain documentation to sup- 
port all elements of costs and cost reim- 
bursement both in total and by facility; 

"(3) Exclude capital outlay disburse- 
ments. However, depreciation expense for 
all ADC fixed assets shall be included. 
Depreciation expense not directly associ- 
ated with the fixed assets of a particular 
facility shall be allocated to each facility 
on the basis of inmate population. 

"(4) Include any interest expense in- 
curred by ADC or another state govern- 
mental entity as a result of prison con- 
struction; 

"(5) Exclude all payments to local gov- 
ernments for care of inmates housed in 
local government facilities; 



"(6) Exclude all payments to local gov- 
ernments for Act 309 prisoners; 

"(7) Include the state matching re- 
quirements associated with federal grant 
expenditures. Documentation shall be 
maintained sufficient to identify such 
costs by grant. 

"(8) Deduct reimbursements for costs 
incurred. The amount of the reimburse- 
ment deducted shall be equal to or less 
than the cost with which the reimburse- 
ment is associated. 

"(9) Include all ancillary costs. These 
costs shall include, but are not limited to: 

"(A) ADC expenses incurred through 
fund transfers; 

"(B) Retirement costs; 

"(C) Audit costs; 

"(D) ADC cost for shared employees 
paid by another state governmental en- 
tity; 

"(E) Inmate educational and rehabili- 
tation costs; 

"(F) Inmate related expenses incurred 
by the Attorney General; however; ex- 
penses shall not include costs of defending 
Habeas Corpus cases. 

"(c) In determining costs per inmate 
per day for reporting to the Arkansas 
Legislative Council in accordance with 
subsection (a) of this section, ADC shall: 

"(1) Accumulate the number of inmates 
housed at each ADC facility each day 
throughout the state fiscal year for which 
costs are being reported. This accumula- 
tion shall result in total inmate days and 
shall be divided into total direct and indi- 
rect costs compiled in accordance with 
subsections (a) and (b) of this section. 

"(2) Exclude those ADC inmates 
housed in local governmental facilities 
and Act 309 prisoners from the number of 
inmates housed at ADC facilities. 

"(3) Maintain documentation support- 
ing the number of inmates housed at ADC 
facilities." 



185 



INMATES OF STATE FACILITIES 

CHAPTER 29 
INMATES OF STATE FACILITIES 



12-29-502 



Subchapter 2 — Good Time Allowance 



12-29-201. Meritorious good time. 

CASE NOTES 



Applicability. 

Because this section, changing how 
meritorious good-time credit was applied, 
did not impliedly repeal the language in 
§ 16-90-121 (the deadly-weapon enhance- 
ment statute applicable at the time of an 



inmate's sentence), the inmate's 30-year 
sentence for first-degree murder was sub- 
ject to reduction by meritorious good-time 
credit at the conclusion of the first 10 
years of the sentence. Hobbs v. Baird, 2011 
Ark. 261, — S.W.3d — (2011). 



Subchapter 5 



State Prison Inmate Care and Custody 
Reimbursement Act 



12-29-501. Title. 



CASE NOTES 



Analysis 

Constitutionality. 
Illustrative Cases. 

Constitutionality. 

Supreme Court of Arkansas held that 
the application of the Arkansas State 
Prison Inmate Care and Custody Reim- 
bursement Act, §§ 12-29-501 to 12-29- 
507, to appellant and other inmates based 
solely on the balance in their inmate ac- 
counts did not violate the equal protection 
guarantee because the Act was rationally 
related to the legitimate government pur- 
pose of allowing the State to seek reim- 
bursement for care and custody expenses 



from inmates whose account balances 
were greater than the cost of litigating the 
reimbursement under the Act. MacKool v. 
State, 2012 Ark. 287, — S.W.3d — (2012). 

Illustrative Cases. 

State was entitled to the $5016.61 in 
appellant's inmate account under the Ar- 
kansas State Prison Inmate Care and 
Custody Reimbursement Act, §§ 12-29- 
501 to 12-29-507, for a portion of the cost 
of housing appellant, because money ap- 
pellant received as a gift from his mother 
that was deposited into the account was 
clearly within the Act's definition of the 
term "estate." MacKool v. State, 2012 Ark. 
287, — S.W.3d — (2012). 



12-29-502. Definitions. 



CASE NOTES 



Recovery from Estate. 

State was entitled to the $5016.61 in 
appellant's inmate account under the Ar- 
kansas State Prison Inmate Care and 
Custody Reimbursement Act, §§ 12-29- 
501 to 12-29-507, for a portion of the cost 
of housing appellant. The Supreme Court 



of Arkansas held that any money appel- 
lant received as a gift from his mother 
that was deposited into his inmate ac- 
count was clearly within the definition of 
the term "estate" in subdivision (4) of this 
section. MacKool v. State, 2012 Ark. 287, 
— S.W.3d — (2012). 



12-29-504 



LAW ENFORCEMENT, ETC. 



186 
Appointment of 



12-29-504. Reimbursement proceedings 
guardian. 

CASE NOTES 



Cited: MacKool v. State, 2012 Ark. 287, 
— S.W.3d — (2012). 

12-29-507. Deposit of recovered moneys — Payment of costs. 

CASE NOTES 



Illustrative Cases. 

Because the sate was entitled to the 
$5016.61 in appellant's inmate account 
under the Arkansas State Prison Inmate 
Care and Custody Reimbursement Act, 
§§ 12-29-501 to 12-29-507 for a portion of 



the cost of housing appellant, the court 
ordered the deposit of that money into the 
state treasury in accordance with subdivi- 
sion (a)(1) of this section. MacKool v. 
State, 2012 Ark. 287, — S.W.3d — (2012). 



CHAPTER 41 
LOCAL CORRECTIONAL FACILITIES 



Subchapter 1 — General Provisions 



A.C.R.C. Notes. Acts 2012, No. 266, 
§ 34, provided: "LOCAL GOVERNMENT 
INMATE COST REPORT. Each calendar 
year, the Association of Arkansas Coun- 
ties shall compile and submit a report to 
the Arkansas Legislative Council, of all 
costs incurred, excluding construction 
costs, by local government units housing 
inmates sentenced to the Department of 
Correction and Department of Commu- 
nity Correction. The cost report shall be a 
representative sample of all counties 
housing and caring for state inmates. The 
report shall be submitted no later than 
July 1 of the calendar year immediately 
following the reporting year. 

"The Association of Arkansas Counties 



in coordination with Legislative Audit 
shall determine which counties will be 
included in the sample and shall include a 
sufficient number of counties from each 
classification based upon population and 
each congressional district to ensure a fair 
representation of costs incurred. Guide- 
lines for preparing this cost report shall be 
developed by the Division of Legislative 
Audit in coordination with the Association 
of Arkansas Counties. The Division of 
Legislative Audit shall test the accuracy of 
the information submitted during the rou- 
tine audit of the applicable county. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



187 MILITARY FORCES 12-61-124 

CHAPTER 49 
INTERSTATE COMPACTS 



Subchapter 1 — Interstate Corrections Compact 

12-49-101. Title. 

RESEARCH REFERENCES 

ALR. Construction and Application of of Conditions and Rights and Responsi- 
Interstate Corrections Compact and bilities of Parties. 56 A.L.R.6th 553. 
Implementing State Laws — Equivalency 

12-49-102. Text of Interstate Corrections Compact. 

RESEARCH REFERENCES 

ALR. Construction and Application of of Conditions and Rights and Responsi- 
Interstate Corrections Compact and bilities of Parties. 56 A.L.R.6th 553. 
Implementing State Laws — Equivalency 

12-49-103. Director's powers. 

RESEARCH REFERENCES 

ALR. Construction and Application of of Conditions and Rights and Responsi- 
Interstate Corrections Compact and bilities of Parties. 56 A.L.R.6th 553. 
Implementing State Laws — Equivalency 

SUBTITLE 4. MILITARY AFFAIRS 

CHAPTER 61 
MILITARY FORCES 

Subchapter 1 — State Militia Generally 

12-61-124. Civilian juvenile student training programs. 

A.C.R.C. Notes. Acts 2012, No. 58, § provided by commercial lease/purchase of 

16, provided: "CIVILIAN STUDENT motor vehicles not to exceed six vehicles at 

TRAINING PROGRAM TRANSPORTA- Camp Joseph T. Robinson. 

TION. Transportation to support Civilian "The provisions of this section shall be 

Student Training program activities for in effect only from July 1, 2012 through 

juvenile participants and staff may be June 30, 2013." 



12-61-125 



LOCAL GOVERNMENT 



188 



12-61-125. National Guard Youth Challenge Program — Stipend. 



A.C.R.C. Notes. Acts 2012, No. 58, 
§ 17, provided: "YOUTH CHALLENGE 
PROGRAM — STIPENDS. Juvenile par- 
ticipants in the Arkansas National Guard 
Youth Challenge Program at Camp Jo- 
seph T. Robinson receiving services from 
the Arkansas National Guard are autho- 
rized to receive a monetary stipend, not to 
exceed fifteen dollars ($15.00) per week to 
defray personal hygiene and other per- 
sonal necessities, and a monetary stipend 



not to exceed two thousand two hundred 
dollars ($2,200) upon graduation from the 
program to defray costs for additional job 
training or education. Juvenile partici- 
pants are authorized to receive uniforms 
and clothing items as determined by the 
staff to be appropriate for effective partici- 
pation in outdoor activities. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



12-61-126. National Guard Youth Challenge Program — Trans- 
portation. 



A.C.R.C. Notes. Acts 2012, No. 58, 
§ 18, provided: "YOUTH CHALLENGE 
PROGRAM TRANSPORTATION. Trans- 
portation to support Arkansas National 
Guard Youth Challenge Program activi- 
ties for juvenile participants and staff 



may be provided by commercial lease/ 
purchase of motor vehicles not to exceed 
six vehicles. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



12-61-128. Civilian Student Training Program — Transporta- 
tion. 



A.C.R.C. Notes. Acts 2012, No. 58, § 
16, provided: "CIVILIAN STUDENT 
TRAINING PROGRAM TRANSPORTA- 
TION. Transportation to support Civilian 
Student Training program activities for 
juvenile participants and staff may be 



provided by commercial lease/purchase of 
motor vehicles not to exceed six vehicles at 
Camp Joseph T. Robinson. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



TITLE 14 
LOCAL GOVERNMENT 



SUBTITLE 2. COUNTY GOVERNMENT 



CHAPTER. 

16. POWERS OF COUNTIES GENERALLY. 



189 POWERS OF COUNTIES GENERALLY 14-16-105 

SUBTITLE 2. COUNTY GOVERNMENT 

CHAPTER 14 
COUNTY GOVERNMENT CODE 

Subchapter 8 — Legislative Powers 

14-14-805. Powers denied. 

RESEARCH REFERENCES 

ALR. Construction and Application of Constitutional Provisions Proscribing 
U.S. Const. Art. I, § 10, cl. 1, and State State Bills of Attainder. 63 A.L.R.6th 1. 

Subchapter 11 — Execuhve Powers 

14-14-1105. Jurisdiction of county court. 

CASE NOTES 

County Taxes. such a challenge to the distribution of the 
Arkansas Supreme Court lacked juris- tax proceeds should have been raised in 
diction to consider the appeal from the county court pursuant to Ark. Const. Art. 
circuit court, because the circuit court 7, § 28 and subdivision (b)(1) of this sec- 
lacked jurisdiction to dismiss the com- tion; it was undisputed that the case dealt 
plaint for failure to state a cause of action, wit h a county ad valorem tax. Carnegie 
when appellants' complaint challenged Pub Library v. Carroll County, 2012 Ark. 

how the county was distributing the pro- -^8 S W3d (2012) 

ceeds collected from the library tax, and 

CHAPTER 16 
POWERS OF COUNTIES GENERALLY 

subchapter. 
1. General Provisions. 

Subchapter 1 — General Provisions 

SECTION. 

14-16-106. Sale or disposal of surplus 
property. 

14-16-105. Sale of county property generally. 

CASE NOTES 

Cited: Searcy County Counsel for Ethi- 
cal Gov't v. Hinchey, 2011 Ark. 533, — 
S.W.3d — (2011). 



14-16-106 LOCAL GOVERNMENT 190 

14-16-106. Sale or disposal of surplus property. 

(a) If it is determined by the county judge to be surplus, any personal 

or real property owned by a county may be sold at public auction or by 

Internet sale to the highest bidder. 
(b)(1) Notice of the public auction or Internet sale shall be published 

at least one (1) time a week for two (2) consecutive weeks in a 

newspaper having general circulation in the county 

(2) The notice shall specify the description of the property to be sold 

and the time and place of the public auction or Internet sale. 

(3)(A) If the property will be sold by Internet sale, the notice of sale 
shall be placed on the website of the Internet vendor for no less than 
eight (8) consecutive days before the date of sale and shall contain a 
description of the property to be sold and the time of the sale. 

(B) An additional notice may be posted on a county-owned or 
county-affiliated website, trade website, or business website for no 
less than eight (8) consecutive days before the date of sale. 
(c)(1) If it is determined by the county judge and the county assessor 

that any personal property owned by a county is junk, scrap, discarded, 

or otherwise of no value to the county, then the property may be 

disposed of in any manner deemed appropriate by the county judge. 
(2) However, the county judge shall report monthly to the quorum 

court any property that has been disposed of under subdivision (c)(1) of 

this section. 

(d) The county fixed asset listing shall be amended to reflect all sales 
or disposal of county property made by the county under this section. 

(e) If the sale is conducted on the Internet, the invoice from the 
Internet vendor or publisher shall be accompanied by a statement from 
the Internet vendor or publisher that the sale was published and 
conducted on the Internet. 

(f)(1) When the sale is complete, the county court shall enter an order 
approving the sale. 
(2) The order shall set forth: 

(A) The description of the property sold; 

(B) The name of the purchaser; 

(C) The terms of the sale; 

(D) That the proceeds of the sale have been deposited with the 
county treasurer; and 

(E) The funds to which the proceeds were credited by the county 
treasurer. 

History. Acts 1980 (1st Ex. Sess.), No. ing set out to correct an omission of (b)(3) 

41, § 1; 1980 (1st Ex. Sess.), No. 63, § 1; from the 2011 supplement. 

A.S.A. 1947, § 17-322;Actsl997,No.364, Amendments. The 2011 amendment 

§ 1; 2005, No. 725, § 1; 2011, No. 614, inserted "or by Internet sale" in (a), (b)(1) 

§ 4; 2011, No. 1014, § 2. and (2); and added (d). 

Publisher's Notes. This section is be- 






191 CONSOLIDATION & DETACHMENT 14-40-302 

CASE NOTES 

Cited: Searcy County Counsel for Ethi- 
cal Gov't v. Hinchey, 2011 Ark. 533, — 
S.W.3d — (2011). 

CHAPTER 17 
COUNTY PLANNING 

Subchapter 2 — County Planning Boards 

14-17-208. Subdivision, setback, and entry control ordinances. 

CASE NOTES 

Descriptions. record sufficiently identified the parties' 

In a boundary dispute between adjoin- respective properties so that each party 

ing property owners involving an alleged was capable of knowing where their 

"spite" fence, a metes-and-bounds descrip- boundary was. Jenkins v. Fogerty, 2011 

tion of the property was not required Ark. App. 720, — S.W.3d — (2011). 
where the survey that was part of the 

SUBTITLE 3. MUNICIPAL GOVERNMENT 

CHAPTER 40 

ANNEXATION, CONSOLIDATION, AND DETACHMENT 
BY MUNICIPALITIES 

Subchapter 3 — Municipal Annexation of Contiguous Lands 

14-40-302. Authority — Exceptions. 

RESEARCH REFERENCES 

ALR. Validity, Construction and Appli- riods Governing Election Contests. 60 
cation of State Statutory Limitations Pe- A.L.R.6th 481. 

CASE NOTES 

Time Limitation. § 14-40-304 extended to challenges to all 

While the property owners argued that procedures outlined in § 14-40-301 et 

§ 14-40-304 did not apply to claims under seq., and not only to those enumerated in 

§ 14-40-303, the law was otherwise. The this section. Conrad v. City of Beebe, 2012 

30-day limitations period set forth in Ark. App. 15, — S.W.3d — (2012). 



14-40-303 



LOCAL GOVERNMENT 



192 



14-40-303. Annexation ordinance — Election — Procedures. 

CASE NOTES 



Analysis 

Applicability. 
Description of Lands. 

Applicability. 

Although the circuit court erred in find- 
ing that subdivision (f) of this section was 
applicable, because it governed the proce- 
dures for two cities that have called for 
annexation elections on all or part of the 
same land, the circuit court reached the 
right result in finding that 3360 acres 
annexed pursuant to an election 15 years 
earlier became a part of the city of West 
Memphis. City of Marion v. City of W. 
Memphis, 2012 Ark. 384, — S.W.3d — 
(2012). 



Description of Lands. 

Although the property owners argued 
that the circuit court erred in refusing to 
set aside the annexation of their property 
because the city failed to attach a map and 
legal description of the property proposed 
to be annexed in its newspaper publica- 
tion in violation of subdivision (c)(1)(D) of 
this section, the language in this section 
required only that the city give notice of 
the election, which it did in the instant 
case. While publication of a map or legal 
description might have been helpful to the 
voters, the statute did not require the city 
to include either. Conrad v. City of Beebe, 
2012 Ark. App. 15, — S.W.3d — (2012). 



14-40-304. Judicial review. 



RESEARCH REFERENCES 



ALR. Validity, Construction and Appli- 
cation of State Statutory Limitations Pe- 



riods Governing Election 
A.L.R.6th 481. 



Contests. 60 



CASE NOTES 



Time Limitation. 

While the property owners argued that 
this section did not apply to claims under 
§ 14-40-303, the law was otherwise. The 
30-day limitations period set forth in this 



section extended to challenges to all pro- 
cedures outlined in § 14-40-301 et seq., 
and not only to those enumerated in § 14- 
40-302. Conrad v. City of Beebe, 2012 Ark. 
App. 15, — S.W.3d — (2012). 



Subchapter 6 — Annexation Proceedings by Adjoining Landowners 
14-40-601. Application by petition. 

CASE NOTES 



Notice. 

In an action challenging a petition for 
annexation of certain lands to the city, the 
circuit court entered an order finding that 
notice of the annexation was given in 
accordance withthis section because the 
published notice accurately described the 



real property to be annexed and more 
than fifty percent of the owners within the 
area to be annexed approved of the an- 
nexation. Thompson v. City of Bauxite, 
2012 Ark. App. 580, — S.W.3d — , 2012 
Ark. App. LEXIS 712 (Oct. 24, 2012). 



CONSOLIDATION & DETACHMENT 



193 

14-40-604. Proceedings to prevent annexation. 



14-40-2002 



CASE NOTES 



Thirty-Day Period. 

Where the final order of the county 
court granting annexation was entered on 
December 4, 2007, appellants' complaint 
to challenge the annexation order should 
have been filed by January 4, 2008; how- 
ever, the complaint was not filed until 
July 31, 2008. Because appellants filed 



their complaint beyond the time allowed 
by subdivision (a)(1) of this section, the 
trial court's decision to dismiss the com- 
plaint was not erroneous. Thompson v. 
City of Bauxite, 2012 Ark. App. 580, — 
S.W.3d— , 2012 Ark. App. LEXIS 712 (Oct. 
24, 2012). 



14-40-608. Right to detach certain lands after an annexation 
proceeding. 

CASE NOTES 



Procedure. 

Land of landowners who failed to follow 
the procedures of this section to detach 
their land from the City of West Memphis 
prior to seeking annexation into the City 
of Marion remained part of West Mem- 



phis. The West Memphis annexation of 
the land 15 years earlier was not void on 
the ground that the ballot included some 
land that was not annexed. City of Marion 
v. City of W Memphis, 2012 Ark. 384, — 
S.W.3d — (2012). 



Subchapter 20 — Municipal Services 
14-40-2002. Annexation into adjoining municipality. 

CASE NOTES 



Annexation. 

When annexed lands did not compose 
one area, under subdivision (b)(1) of this 
section, the annexations were not invalid 
because separate lands could be annexed 
at one time. City of Rockport v. City of 
Malvern, 2012 Ark. 445, — S.W3d — , 
2012 Ark. LEXIS 473 (Nov. 29, 2012). 

Annexation of lands from a city to a 
municipality, at the request of the lands' 
owners, was not invalid due to being done 
by resolution, rather than ordinance be- 
cause (1) this section clearly contemplated 
annexation by resolution, and (2) a refer- 
ence in § 14-40-2004(c) to "ordinance" did 
not govern, as this section was the more 



specific statute. City of Rockport v. City of 
Malvern, 2012 Ark. 445, — S.W3d — , 
2012 Ark. LEXIS 473 (Nov. 29, 2012). 

Annexation of lands from a city to a 
municipality, at the request of the lands' 
owners, was not invalid when the city's 
streets separated annexed lands from the 
municipality, for lack of contiguity to the 
municipality, under subdivision (b)(1)(B) 
of this section, because a street did not 
break contiguity, since landowners held 
all rights to the land not inconsistent with 
public use of the street. City of Rockport v. 
City of Malvern, 2012 Ark. 445, — S.W3d 
— , 2012 Ark. LEXIS 473 (Nov. 29, 2012). 



14-40-2004 LOCAL GOVERNMENT 194 

14-40-2004. Hearing in circuit court — Appeal. 

CASE NOTES 

Annexation. reference in subsection (c) of this section 

Annexation of lands from a city to a to "ordinance" did not govern, as § 14-40- 

municipality, at the request of the lands' 2002 was the more specific statute. City of 

owners, was not invalid due to being done Rockport v. City of Malvern, 2012 Ark. 

by resolution, rather than ordinance be- 445, _ S.W.3d — , 2012 Ark. LEXIS 473 

cause (1) § 14-40-2002 clearly contem- (Nov. 29 2012). 
plated annexation by resolution, and (2) a 

CHAPTER 42 
GOVERNMENT OF MUNICIPALITIES GENERALLY 

Subchapter 2 — Elections 

14-42-201. Election of municipal officers generally. 

CASE NOTES 

Residency Requirements. In determining the residency of voters 
Where a mayor-elect owned a home out- and public officials, the Supreme Court of 
side of the city limits, but rented a resi- Arkansas considers (1) whether a person 
dence within the city limits, the circuit is physically present in a particular loca- 
court did not clearly err when it found tion, or (2) whether a person intends to 
that the state failed to meet its burden of establish a domicile in a particular loca- 
proving that the mayor-elect did not re- tion. In other words, if a candidate is 
side within the city limits, as required unable to establish residency by showing 
under subdivision (c)(1) of this section, physical presence in the requisite loca- 
For the purposes of subsection (c)(1), the tion, the court allows a candidate to estab- 
legislature intended for "reside" to mean lish residency by showing domiciliary in- 
live or be physically present. State v. tent in the requisite location. State v. 
Jernigan, 2011 Ark. 487, — S.W.3d — Jernigan, 2011 Ark. 487, — S.W.3d — 
(2011). (2011). 

CHAPTER 54 
POWERS OF MUNICIPALITIES GENERALLY 

Subchapter 3 — Real and Personal Property 

14-54-302. Purchase, lease, and sale authorized. 

CASE NOTES 

Contracts Not Formally Authorized. nying the city's motion for a directed ver- 
In property owners' suit against a city, diet because there was no evidence the 
alleging the city failed to comply with the city engineer had the authority to bind the 
terms and conditions of an agreement city to a contract, pursuant to subdivision 
between the parties for the location of a (a)(2) and subsection (c) of this section, to 
storm drainage easement upon the own- acquire an interest in the owners' prop- 
ers' property, the trial court erred in de- erty and obligate the city to perform 



195 PROPERTY OWNERS' IMPROVEMENT DISTRICTS 14-93-105 

drainage construction on the property. 
City of Bryant v. Collins, 2011 Ark. App. 
713, — S.W.3d — (2011). 

CHAPTER 55 
ORDINANCES OF MUNICIPALITIES 

Subchapter 2 — Procedures for Adoption 

14-55-202. Reading requirement. 

CASE NOTES 

Resolutions. eral, as the resolutions encompassed only 

Annexation of lands from a city to a annexed areas, and (2) the resolutions 

municipality, at the request of the lands' were not permanent, as the resolutions 

owners, was not invalid due to a failure to were terminable without repeal. City of 

read the annexation resolutions on three Rockport v. City of Malvern, 2012 Ark. 

different days or to publish the resolutions 445, — S.W.3d — , 2012 Ark. LEXIS 473 

because (1) the resolutions were not gen- (Nov. 29, 2012). 

14-55-206. Publishing or posting requirements. 

CASE NOTES 

Applicability. eral, as the resolutions encompassed only 

Annexation of lands from a city to a annexed areas, and (2) the resolutions 

municipality, at the request of the lands' were not permanent, as the resolutions 

owners, was not invalid due to a failure to were terminable without repeal. City of 

read the annexation resolutions on three Rockport v. City of Malvern, 2012 Ark. 

different days or to publish the resolutions 445, — S.W.3d — , 2012 Ark. LEXIS 473 

because (1) the resolutions were not gen- (Nov. 29, 2012). 

SUBTITLE 5. IMPROVEMENT DISTRICTS GENERALLY 

CHAPTER 93 
PROPERTY OWNERS' IMPROVEMENT DISTRICTS 

14-93-105. Petition to form district. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev., LLC), — F.3d — , 2012 U.S. 



14-93-106 LOCAL GOVERNMENT 196 

14-93-106. Hearing on petition and determination. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev., LLC), — F.3d — , 2012 U.S. 

14-93-107. Board of commissioners generally. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 

14-93-108. Removal of board members. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev, LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 

14-93-112. Corporate powers. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev, LLC '(In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 

14-93-113. Right and power of eminent domain. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev, LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 

14-93-116. Assessment of benefits and damages. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev, LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 






197 PROPERTY OWNERS' IMPROVEMENT DISTRICTS 14-93-127 

14-93-117. Filing and notice of assessment — Hearing. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev., LLC), — F.3d — , 2012 U.S. 

14-93-119. Levy of tax. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev., LLC), — F.3d — , 2012 U.S. 

14-93-120. Interest on assessment. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev., LLC), — F.3d — , 2012 U.S. 

L 14-93- 121. Extension and collection of taxes. 
CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev., LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 

14-93-122. Subsequent levies. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev, LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — , 2012 U.S. 

14-93-127. Dissolution of district. 

CASE NOTES 

Cited: Nat'l Bank of Ark. v. Panther App. LEXIS 15319 (8th Cir. July 25, 
Mt. Land Dev, LLC (In re Panther Mt. 2012). 
Land Dev, LLC), — F.3d — 2012 U.S. 



14-235-201 LOCAL GOVERNMENT 198 

SUBTITLE 14. SOLID WASTE DISPOSAL, WATERWORKS, 
AND SEWERS GENERALLY 

CHAPTER 235 
MUNICIPAL SEWAGE SYSTEMS 

Subchapter 2 — Operation of Systems by Municipalities 

14-235-201. Definition. 

CASE NOTES 

Sewerage System. code did not define "sewerage system" to 

Stormwater utility fee was not an ille- distinguish between the wastewater 

gal extraction because § 14-235-223(a)(l) sewer system and the stormwater sewer 

did not state that the fee had to be paid by system. Morningstar v. Bush, 2011 Ark. 

any beneficiary, whether intended or un- 350, 383 S.W.3d 840 (2011). 
intended, of the sewerage system, and the 

14-235-203. Authority generally. 

CASE NOTES 

Illegal Exaction. code did not define "sewerage system" to 

Stormwater utility fee was not an ille- distinguish between the wastewater 

gal exaction because § 14-235-223(a)(l) sewer system and the stormwater sewer 

did not state that the fee had to be paid by system. Morningstar v. Bush, 2011 Ark. 

any beneficiary, whether intended or un- 350, 383 S.W.3d 840 (2011). 
intended, of the sewerage system, and the 

14-235-223. Rates and charges for services — Lien. 

CASE NOTES 

Illegal Extraction. system, and the code did not define "sew- 

Stormwater utility fee was not an ille- erage system" to distinguish between the 

gal extraction because subdivision (a)(1) wastewater sewer system and the storm- 

of this section did not state that the fee water sewer system. Morningstar v. Bush, 

had to be paid by any beneficiary, whether 2011 Ark. 350, 383 S.W.3d 840 (2011). 
intended or unintended, of the sewerage 






199 FIRE PROTECTION DISTRICTS 14-284-403 

SUBTITLE 16. PUBLIC HEALTH AND WELFARE 

GENERALLY 

CHAPTER 266 
MUNICIPAL AMBULANCE LICENSING 

14-266-105. Grant of authority. 

CASE NOTES 

Cited: City of Clinton v. Southern 
Paramedic Servs., 2012 Ark. 88, — S.W.3d 
— (2012). 

CHAPTER 269 
PARKS AND RECREATIONAL FACILITIES 

Subchapter 1 — Acquisition, Construction, and Maintenance of 
Recreational Facilities 

14-269-103. General authority — Agreements with federal agen- 
cies — Condemnation proceedings. 

CASE NOTES 

Appeal. not a final, appealable order. The con- 
In an eminent domain case in which an struction of a bicycle trail would not ren- 
order of immediate possession was der it impossible to restore his property to 
granted, because the issue of just compen- its previous condition. Thomas v. City of 
sation remained to be determined, the Fayetteville, 2012 Ark. 120 (2012). 
order granting immediate possession was 

SUBTITLE 17. PUBLIC HEALTH AND WELFARE 
IMPROVEMENT DISTRICTS 

CHAPTER 284 
FIRE PROTECTION DISTRICTS 

Subchapter 4 — Insurance Premium Taxes 

14-284-403. Apportionment of funds. 

A.C.R.C. Notes. Acts 2012, No. 281, funding for grants to fire departments for 

§ 79, provided: "FUNDING — GRANTS Crittenden County during the 2010-2011 

TO FIRE DEPARTMENTS. " After funds fiscal year in the amount of one hundred 

collected pursuant to §26-57-614 are dis- fifty-three thousand nine hundred and 

tributed in accordance with §14-284-403, forty-eight dollars ($153,948) or above, 

any remaining balance of authorized shall be distributed as follows: 



14-362-120 



LOCAL GOVERNMENT 



200 



"(a) eight and three tenths percent 
(8.3%) shall be distributed to the Anthony- 
ville Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(b) eight and three tenths percent 
(8.3%) shall be distributed to the Craw- 
fordsville Fire Department up to a maxi- 
mum of twelve thousand eight hundred 
and twenty-nine dollars ($12,829), and 

"(c) eight and three tenths percent 
(8.3%) shall be distributed to the Earle 
Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(d) eight and three tenths percent 
(8.3%) shall be distributed to the Edmond- 
son Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(e) eight and three tenths percent 
(8.3%) shall be distributed to the Heafer 
Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(f) eight and three tenths percent 
(8.3%) shall be distributed to the Horse- 
shoe Lake Fire Department, up to a maxi- 
mum of twelve thousand eight hundred 
and twenty-nine dollars ($12,829), and 

"(g) eight and three tenths percent 
(8.3%) shall be distributed to the Jericho 



Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(h) eight and three tenths percent 
(8.3%) shall be distributed to the Marion 
Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(i) eight and three tenths percent 
(8.3%) shall be distributed to the Proctor 
Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(j) eight and three tenths percent 
(8.3%) shall be distributed to the West 
Memphis Fire Department up to a maxi- 
mum of twelve thousand eight hundred 
and twenty-nine dollars ($12,829), and 

"(k) eight and three tenths percent 
(8.3%) shall be distributed to the Clarke- 
dale Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829), and 

"(1) eight and three tenths percent 
(8.3%) shall be distributed to the Turrell 
Fire Department up to a maximum of 
twelve thousand eight hundred and 
twenty-nine dollars ($12,829). 

"Any balances remaining for Crittenden 
County following the distribution in sub- 
sections (a) through (1) of this Section, 
shall be distributed to active fire depart- 
ments based on population." 



SUBTITLE 22. AIRPORT FACILITIES GENERALLY 

CHAPTER 362 
REGIONAL AIRPORTS 

Subchapter 1 — General Provisions 

14-362-120. Acquisition of property. 

CASE NOTES 



Attorney's Fees. 

Trial court erred in awarding attorney's 
fees to a lessee in an airport eminent 
domain proceeding brought under this 
section because § 18-15-605(b) applied 



only to municipal corporations and other 
corporations that supplied water to cities, 
towns, or rural areas. Delta Reg! Airport 
Auth. v. Gunn, 2011 Ark. App. 701, — 
S.W.3d — (2011). 



201 DEVELOPMENT OF BUSINESS AND INDUSTRY 15-4-211 

TITLE 15 

NATURAL RESOURCES AND ECONOMIC 
DEVELOPMENT 

SUBTITLE 1. DEVELOPMENT OF ECONOMIC AND NATURAL RESOURCES 
GENERALLY 

CHAPTER. 

4. DEVELOPMENT OF BUSINESS AND INDUSTRY GENERALLY. 

SUBTITLE 1. DEVELOPMENT OF ECONOMIC AND 
NATURAL RESOURCES GENERALLY 

CHAPTER 4 

DEVELOPMENT OF BUSINESS AND INDUSTRY 

GENERALLY 



subchapter. 

32. Arkansas Amendment 82 Implementation Act. 

Subchapter 2 — Arkansas Economic Development Councdl 

15-4-211. Overseas program — Personnel. 

A.C.R.C. Notes. Acts 2012, No. 248, Acts 2012, No. 248, § 18, provided: 

§ 17, provided: "FOREIGN OFFICE OP- "MULTI-USE FACILITIES. The Arkan- 

ERATIONS. The Arkansas Economic De- sas Economic Development Commission 

velopment Commission is hereby autho- (AEDC) shall structure its annual update 

rized to enter into contractual to the Five Year Consolidated Plan and 

arrangements with private and/or public the new Five Year Consolidated Plan to 

companies, corporations, individuals or reflect the legislative intent for a priority 

organizations for the purpose of operating to be placed on the use of Community 

foreign offices. Arkansas Code 15-4-211 Development Block Grant (CDBG) funds 

shall not be deemed restrictive in its Ian- for Multi-use facilities that will offer com- 

guage so as to preclude the use of stan- bined facilities for programs commonly 

dard Professional Services Contracts for offered in separate facilities such as senior 

the operation of the foreign offices and/or centers, public health centers, childcare 

payment of such contracts from the spe- centers and community centers. AEDC 

cial line items as established by legislative shall report the methodology for comply- 

appropriation for the operation of said ing with this priority to the Legislative 

foreign offices. Council. 

"The provisions of this section shall be "The provisions of this section shall be 

in effect only from July 1, 2012 through in effect only from July 1, 2012 through 

June 30, 2013." June 30, 2013." 

Subchapter 32 — Arkansas Amendment 82 Implementation Act 

SECTION. 

15-4-3203. Amendment 82 project quali- 
fication. 



15-4-3203 NATURAL RESOURCES/ECONOMIC DEVELOPMENT 202 

15-4-3203. Amendment 82 project qualification. 

(a)(1)(A) In exercising its responsibilities under Arkansas Constitu- 
tion, Amendment 82, the General Assembly delegates, authorizes, 
and directs the Arkansas Economic Development Commission, the 
Arkansas Development Finance Authority, and the Chief Fiscal 
Officer of the State to undertake a review of all proposed projects 
following the procedures described in this section. 

(B) In order to be considered for qualification, a sponsor must fall 
within the definition of an "eligible business", as defined in § 15-4- 
2703. 

(2) If the Governor refers a proposed project to the General Assembly 
under subsection (h) of this section, the commission and the authority 
shall prepare and provide to each member of the General Assembly the 
reports described in subsection (i) of this section, after which the 
General Assembly shall make the final and definitive decisions concern- 
ing the proposed project as set forth in subsection (j) of this section. 

(b)(1) As the lead economic development agency for the State of 
Arkansas, the Arkansas Economic Development Commission may pro- 
pose the use of Amendment 82 bonds to finance infrastructure and 
other needs in any combination in order to attract proposed projects to 
the State of Arkansas. 

(2) In addition to powers conferred under other laws, the commission 
may take any reasonable action necessary to carry out the purposes of 
Arkansas Constitution, Amendment 82, and this subchapter. 

(3) The proposed use of Amendment 82 financing by the commission 
shall not prohibit the commission, the state, or any local entity from 
using any other available economic incentives in connection with a 
proposed project. 

(c) The commission shall initiate the process of selecting a proposed 
project for referral to the General Assembly by performing an economic 
impact and cost-benefit analysis to evaluate the capability of a sponsor 
and the feasibility of a proposed project and to determine if the 
proposed project has the potential to be a qualified Amendment 82 
project. The economic impact and cost-benefit analysis shall include all 
other economic incentives offered by the state in connection with the 
proposed project. 

(d) If the commission determines that a proposed project has the 
potential to become a qualified Amendment 82 project, the commission 
shall refer the proposal and the commission's findings to the authority 
so that the authority may perform an initial assessment of the feasi- 
bility and impact of issuing Amendment 82 bonds in connection with 
the proposed project, including the state's ability to cover projected debt 
service obligations and the impact on the overall rating of the state's 
general obligation bonded indebtedness, including, without limitation, 
bonds issued under Arkansas Constitution, Amendment 82, and this 
subchapter. 

(e) If the authority's initial assessment is that Amendment 82 bond 
financing for the proposed project is feasible, the authority shall notify 



203 DEVELOPMENT OF BUSINESS AND INDUSTRY 15-4-3203 

the department, and the department shall refer the proposal and the 
findings of the department and the authority to the Chief Fiscal Officer 
of the State for review of the impact of the proposed Amendment 82 
bond financing on any agency or program supported from the gross 
general revenues under the Revenue Stabilization Law, § 19-5-101 et 
seq. 

(f) If the Chief Fiscal Officer of the State's initial assessment is that 
the proposed Amendment 82 financing will not have a substantially 
negative impact on any agency or program supported from gross 
general revenues, then: 

(1) The Chief Fiscal Officer of the State shall notify the commission; 
and 

(2) The commission shall make a formal proposal to the sponsor 
detailing the state's proposed offer with respect to Amendment 82 
financing and all other economic incentives offered by the state in 
connection with the proposed project. 

(g)(1) If the sponsor of a proposed project determines to accept 
Amendment 82 financing, then the sponsor and the commission, on 
behalf of the state, shall sign a letter of commitment. 

(2) The commission shall forward the letter of commitment and the 
findings and recommendations of the commission, the authority, and 
the Chief Fiscal Officer of the State to the Governor for review. 
(3)(A) The commission shall also forward the letter of commitment, 
the findings and recommendations of the the department, the author- 
ity, and the Chief Fiscal Officer of the State, and all supporting 
documentation to the Office of Economic and Tax Policy of the Bureau 
of Legislative Research on behalf of the President Pro Tempore of the 
Senate and the Speaker of the House of Representatives. 

(B)(i) At the direction of the President Pro Tempore of the Senate 
or the Speaker of the House of Representatives, the office shall 
arrange for an independent confirmation of the economic impact and 
cost-benefit analysis performed by the commission or an independent 
economic impact and cost-benefit analysis of the proposed project to 
be completed within twenty (20) working days after the receipt of the 
letter of commitment. 

(ii) All information forwarded to the President Pro Tempore of the 
Senate and the Speaker of the House of Representatives by the 
commission and any resulting information related to the confirma- 
tion of the commission's economic impact and cost-benefit analysis or 
independent economic impact and cost-benefit analysis: 

(a) Shall be considered working papers of the President Pro 
Tempore of the Senate and the Speaker of the House of Representa- 
tives under § 25- 19- 105(b)(7) and shall not be open to inspection and 
copying by any citizen of the State of Arkansas; and 

(b) Is specifically exempt from the requirements of § 25-19-105(a). 
(h) If the Governor determines that it is in the best interest of the 

state to pursue Amendment 82 financing for the proposed project, the 
Governor shall refer the proposed project to the General Assembly in 



15-4-3203 NATURAL RESOURCES/ECONOMIC DEVELOPMENT 204 

regular session, fiscal session, or special session in order for the General 
Assembly to consider whether to approve the issuance of bonds under 
Arkansas Constitution, Amendment 82, and this subchapter. 

(i)(l) In order to expedite review by the General Assembly, the 
commission and the authority shall prepare and provide to each 
member of the General Assembly the reports described in subdivisions 
(i)(2) and (3) of this section. 

(2) The commission's report shall include: 
(A) A description of the proposed project; 

(B)(i) An itemization of the proposed infrastructure needs and 
other needs to be financed with the proceeds derived from the sale of 
Amendment 82 bonds. 

(ii) The itemization shall include estimated costs and details to the 
maximum extent available at the time of the report; 

(C) A description of all other economic incentives to be provided by 
the state in connection with the proposed project; 

(D) A description of the economic impact and cost-benefit analyses 
of the proposed project for a period of at least ten (10) years that 
includes: 

(i) The annual projected benefit to the state from increased sales 
and use tax and income tax revenue; 

(ii) The annual projected cost to the state for each economic 
incentive offered to the sponsor in connection with the proposed 
project; and 

(iii) The overall net present value benefit-to-cost ratio for the 
period of at least ten (10) years; 

(E) The amount of bonds necessary to be issued to defray project 
costs and a budget of the project costs; 

(F) A tentative time schedule setting forth the period of time 
during which the proceeds of the Amendment 82 bonds are to be 
expended; 

(G) A statement by the Director of the Arkansas Economic Devel- 
opment Commission based on and outlining the: 

(i) Terms of the letter of the commitment; 

(ii) Estimated dollar amount of investment in the state from the 
proposed project; and 

(iii) Estimated number of new jobs to be created by the proposed 
project; 

(H) A copy of the signed letter of commitment for the proposed 
project; and 

(I) A copy of the unexecuted Amendment 82 agreement for the 
proposed project. 

(3) The authority's report shall include: 

(A) A schedule of projected debt service, including all fees, showing 
the annual principal and interest requirements for any Amendment 
82 bonds outstanding, if applicable, and the projected debt service for 
the Amendment 82 bonds proposed to be issued for the proposed 
project; 






205 ARKANSAS RURAL DEVELOPMENT PROGRAM ACT 15-6-107 

(B) A projected schedule of revenues, if any, to be received by the 
state from the sponsor in connection with its use of the infrastructure 
needs and other needs associated with the proposed project; 

(C) An initial plan of marketing for the bonds and a proposed 
schedule of issuance dates, including, without limitation, the number 
of series to be issued and an estimated timeline for the series based 
on the commission's proposed spending schedule; and 

(D) A preliminary and estimated sources and uses table. 

(j) If the General Assembly determines that the proposed project is of 
the nature intended by the electors of the state to be financed with 
Amendment 82 bonds and approves the Amendment 82 agreement, it 
shall take appropriate legislative action to: 

(1) Declare the proposed project a qualified Amendment 82 project; 

(2) Establish any additional parameters deemed necessary by the 
General Assembly for the general structure of the qualified Amendment 
82 project, including, without limitation, penalty provisions; 

(3) Authorize the execution of the Amendment 82 agreement in 
substantially the same form as presented to the General Assembly; and 

(4) Authorize the issuance of Amendment 82 bonds. 

History. Acts 2005, No. 1981, § 1; Publisher's Notes. This section is be- 
2009, No. 962, § 31; 2011, No. 1047, §§ 3, ing set out to reflect a reference correction 
4. in (b)(1). 

CHAPTER 6 
ARKANSAS RURAL DEVELOPMENT PROGRAM ACT 

15-6-106. Arkansas Rural Development Commission — Depart- 
ment of Rural Services — Functions, powers, and 
duties. 

A.C.R.C. Notes. Acts 2012, No. 248, Aside to those applicants receiving final 

§ 21, provided: "GRANT REVIEW. The approval by the Department of Rural Ser- 

Arkansas Economic Development Com- vices. AEDC and the Department of Rural 

mission (AEDC) shall review all applica- Services shall promulgate rules and regu- 

tions for grant funds from the Rural De- lations governing the application for and 

velopment Set- Aside and shall certify to disbursement of grant funds from the Ru- 

the Department of Rural Services those ral Development Set- Aside, and an an- 

applications eligible for grant funds under nual report of the disposition of these 

AEDC and federal guidelines. The De- grant funds shall be made to the Legisla- 

partment of Rural Services alone shall tive Joint Auditing Committee, 
decide which grant applications will be "The provisions of this section shall be 

funded, and AEDC shall disburse grant in effect only from July 1, 2012 through 

funds from the Rural Development Set- June 30, 2013." 

15-6-107. Assistance programs and grants. 

A.C.R.C. Notes. Acts 2012, No. 103, authorized to retain and utilize for admin- 

§ 7, provided: "GENERAL IMPROVE- istrative cost purposes up to one percent 

MENT PROJECTS ADMINISTRATIVE (1%) of the total amount of any General 

FEE. The Department of Rural Services is Improvement Fund moneys received for 



15-6-107 NATURAL RESOURCES/ECONOMIC DEVELOPMENT 



206 



projects authorized for disbursement 
through the department by the General 
Assembly." 

Acts 2012, No. 103, § 8, provided: 
"FUND TRANSFER. Upon request of the 
Director of the Department of Rural Ser- 
vices to the Chief Fiscal Officer of the 
State, the Chief Fiscal Officer of the State, 
from time to time, shall cause to be trans- 
ferred on his books and those of the State 
Treasurer and Auditor of State, an 
amount not to exceed one percent (1%) 
from the various sub funds created in any 
General Improvement Fund, established 
for disbursement through the Department 
of Rural Services, to the Miscellaneous 
Agencies Fund Account. 

"The funds transferred to the Miscella- 
neous Agencies Fund Account from the 
various sub funds established in any Gen- 
eral Improvement Fund pursuant to this 
section shall be made available and uti- 
lized solely by the Department of Rural 
Services for maintenance and general op- 
erations costs." 

Acts 2012, No. 103, § 9, provided: "AD- 
MINISTRATIVE EXPENSES. Any unex- 
pended balance of funds remaining on 
June 30, of each fiscal year in the Miscel- 
laneous Agencies Fund Account for the 
Department of Rural Services that were 
transferred from the various sub funds 
created in any General Improvement 
Fund for the administration of general 
improvement fund projects shall remain 
in the Miscellaneous Agencies Fund Ac- 
count and made available to the Depart- 
ment of Rural Services and utilized for the 
same purpose during the following fiscal 
year." 

Acts 2012, No. 103, § 10, pro- 
vided: "COUNTY FAIR GRANTS. The De- 
partment of Rural Services shall develop 
the necessary rules and regulations for 
the disbursement of matching fund grants 
to county fairs for the construction, reno- 
vation and/or improvements to county fair 



grounds. The grants shall be matched on a 
50/50 basis. The match may be cash or 
in-kind. No county fair shall receive more 
than $30,000 for the biennium." 

Acts 2012, No. 103, § 11, provided: 
"GRANT AWARD CRITERIA. The De- 
partment of Rural Services shall promul- 
gate regulations establishing the criteria 
to be utilized in determining to whom 
grants will be made under this Act. Sub- 
ject to the approval of the Governor, and 
approval by the Arkansas Legislative 
Council or the Joint Budget Committee, 
the Department of Rural Services shall 
distribute the grants. 

"Determining the maximum number of 
employees and the maximum amount of 
appropriation and general revenue fund- 
ing for a state agency each fiscal year is 
the prerogative of the General Assembly. 
This is usually accomplished by delineat- 
ing such maximums in the appropriation 
act(s) for a state agency and the general 
revenue allocations authorized for each 
fund and fund account by amendment to 
the Revenue Stabilization law. Further, 
the General Assembly has determined 
that the Department of Rural Services 
may operate more efficiently if some flex- 
ibility is provided to the Department of 
Rural Services authorizing broad powers 
under this Section. Therefore, it is both 
necessary and appropriate that the Gen- 
eral Assembly maintain oversight by re- 
quiring prior approval of the Legislative 
Council or Joint Budget Committee as 
provided by this section. The requirement 
of approval by the Legislative Council or 
Joint Budget Committee is not a severable 
part of this section. If the requirement of 
approval by the Legislative Council or 
Joint Budget Committee is ruled uncon- 
stitutional by a court of competent juris- 
diction, this entire section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



207 



GENERAL PROVISIONS 



SUBTITLE 2. LAND AND WATER RESOURCES 
GENERALLY 

CHAPTER 20 
GENERAL PROVISIONS 

Subchapter 2 — Arkansas Natural Resources Commission 



A.C.R.C. Notes. Acts 2012, No. 166, 
§§ 21-23, provided: "SECTION 21. 
TRANSFER PROVISION. At the end of 
each fiscal year, the Chief Fiscal Officer of 
the State shall authorize the transfer of 
obligated water, sewer, and solid waste 
funds, as provided in the appropriation 
act for the Natural Resources Commission 
in the appropriation entitled 'Water, 
Sewer and Solid Waste — State', from the 
Miscellaneous Agencies Fund Account, to 
the Water, Sewer and Solid Waste Revolv- 
ing Fund. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013. 

"SECTION 22. CARRY FORWARD. At 
the end of each fiscal year, the Chief Fiscal 
Officer of the State shall authorize the 
carry forward of funds to support the 
amount of obligated grants that are certi- 
fied by the Natural Resources Commis- 
sion for Matching Grants in the appro- 
priation entitled 'Water Quality Plan 
Implementation'. 

"Any carry forward of unexpended bal- 
ance of funding as authorized herein, may 
be carried forward under the following 
conditions: 

"(1) Prior to June 30, 2013 the Agency 
shall by written statement set forth its 
reason(s) for the need to carry forward 
said funding to the Department of Fi- 
nance and Administration Office of Bud- 
get; 

"(2) The Department of Finance and 
Administration Office of Budget shall re- 
port to the Arkansas Legislative Council 
all amounts carried forward by the Sep- 
tember Arkansas Legislative Council or 
Joint Budget Committee meeting which 
report shall include the name of the 
Agency, Board, Commission or Institution 
and the amount of the funding carried 
forward from the first fiscal year to the 
second fiscal year, the program name or 
line item, the funding source of that ap- 



propriation and a copy of the written re- 
quest set forth in (1) above; 

"(3) Each Agency, Board, Commission 
or Institution shall provide a written re- 
port to the Arkansas Legislative Council 
or Joint Budget Committee containing all 
information set forth in item (2) above, 
along with a written statement as to the 
current status of the project, contract, 
purpose etc. for which the carry forward 
was originally requested no later than 
thirty (30) days prior to the time the 
Agency, Board, Commission or Institution 
presents its budget request to the Arkan- 
sas Legislative Council/Joint Budget 
Committee; and 

"(4) Thereupon, the Department of Fi- 
nance and Administration shall include 
all information obtained in item (3) above 
in the budget manuals and/or a statement 
of non-compliance by the Agency, Board, 
Commission or Institution. 

"SECTION 23. CARRY FORWARD. At 
the end of the fiscal year, the Chief Fiscal 
Officer of the State shall authorize the 
carry forward of funds to support the 
amount of obligated grants that are certi- 
fied by the Natural Resources Commis- 
sion for Water Quality Technicians in the 
appropriation entitled 'Water Quality 
Plan Implementation'. 

"Any carry forward of unexpended bal- 
ance of funding as authorized herein, may 
be carried forward under the following 
conditions: 

"(1) Prior to June 30, 2013 the Agency 
shall by written statement set forth its 
reason(s) for the need to carry forward 
said funding to the Department of Fi- 
nance and Administration Office of Bud- 
get; 

"(2) The Department of Finance and 
Administration Office of Budget shall re- 
port to the Arkansas Legislative Council 
all amounts carried forward by the Sep- 
tember Arkansas Legislative Council or 
Joint Budget Committee meeting which 



15-31-106 NATURAL RESOURCES/ECONOMIC DEVELOPMENT 



208 



report shall include the name of the 
Agency, Board, Commission or Institution 
and the amount of the funding carried 
forward from the first fiscal year to the 
second fiscal year, the program name or 
line item, the funding source of that ap- 
propriation and a copy of the written re- 
quest set forth in (1) above; 

"(3) Each Agency, Board, Commission 
or Institution shall provide a written re- 
port to the Arkansas Legislative Council 
or Joint Budget Committee containing all 
information set forth in item (2) above, 
along with a written statement as to the 



current status of the project, contract, 
purpose etc. for which the carry forward 
was originally requested no later than 
thirty (30) days prior to the time the 
Agency, Board, Commission or Institution 
presents its budget request to the Arkan- 
sas Legislative Council/Joint Budget 
Committee; and 

"(4) Thereupon, the Department of Fi- 
nance and Administration shall include 
all information obtained in item (3) above 
in the budget manuals and/or a statement 
of non-compliance by the Agency, Board, 
Commission or Institution." 



SUBTITLE 3. FOREST RESOURCES 

CHAPTER 31 
ARKANSAS FORESTRY COMMISSION 



Subchapter 1 — General Provisions 



15-31-106. Functions, powers, and duties. 



A.C.R.C. Notes. Acts 2012, No. 252, 
§ 48, provides: "REFUND TO EXPENDI- 
TURE. The Arkansas Forestry Commis- 
sion is authorized to charge fees to federal 
agencies and other states to reimburse the 
Commission for expenditures made on be- 
half of these governmental units. These 
fees shall be deposited into the State For- 
estry Fund in the State Treasury as a 
refund to expenditure. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 252, § 50, provides: "RE- 
PORTING REQUIREMENTS. The Ar- 
kansas Forestry Commission shall pres- 
ent the following data each month to the 
Chief Fiscal Officer of the State and the 
Arkansas Legislative Council or Joint 
Budget Committee. This report shall be 
due by the 10th day of the month follow- 
ing the reporting period. The first report- 
ing period shall be July 2012. 



"a) All fund transfers completed by the 
Arkansas Forestry Commission from any 
funding source including federal funds, 
and shall include a justification for the 
completion of the fund transfers. 

"b) All expenditures incurred by the Ar- 
kansas Forestry Commission from any 
funding source including federal funds, 
and shall include a justification for the 
expenditure of the funds. 

"c) All revenue receipts of the Arkansas 
Forestry Commission including but not 
limited to federal funds, general revenue, 
severance tax, acreage tax, timber sales 
and seedlings sales. 

"d) All Arkansas Forestry Commission 
activities including but not limited to, 
firefighting activities, fire prevention, and 
emergency response as it relates to the 
Commission's statutory mission provided 
in Arkansas Code 15-31-101. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



209 



OIL AND GAS COMMISSION 15-71-115 

SUBTITLE 4. WILDLIFE RESOURCES 



CHAPTER 41 

ADMINISTRATION AND ENFORCEMENT OF WILDLIFE 

REGULATIONS 

Subchapter 1 — Arkansas State Game and Fish Commission 



15-41-115. Rewards. 

A.C.R.C. Notes. Acts 2012, No. 270, 
§ 7, provided: "PAYMENT OF RE- 
WARDS. Payment of rewards shall be 
from the Game Protection Fund from the 
Commission's Maintenance and General 



Operation appropriation as herein appro- 
priated in Section 3, Item No. (05)(A). 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



SUBTITLE 6. OIL, GAS, AND BRINE 

CHAPTER 71 
OIL AND GAS COMMISSION 



A.C.R.C. Notes. Acts 2012, No. 272, 
§ 7, provided: "FAYETTEVILLE SHALE 
QUARTERLY REPORTING. The Arkan- 
sas Oil and Gas Commission shall report 
on a quarterly basis to the Arkansas Leg- 
islative Council or the Joint Budget Com- 
mittee the number of inspections and any 
hearings, findings, orders, fines, or other 
agency regulatory or enforcement actions 



or activities involving the Fayetteville 
Shale. The quarterly reports shall be pro- 
vided no later than the 15th day of the 
month immediately following the end of 
each quarter. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



15-71-111. Procedural rules, regulations, or orders — Hearing. 

CASE NOTES 



Failure to Comply with Rules. 

Issuance of a commercial disposal well 
permit was made upon unlawful proce- 
dure and was thus subject to reversal 
under § 25-15-212(h)(3) because the Ar- 
kansas Oil and Gas Commission failed to 
comply with its own rules pursuant to 



subdivision (a)(3) of this section when it 
did not require timely proof of financial 
assurance under Ark. Oil & Gas Comm'n 
Rule H-l. Capstone Oilfield Disposal of 
Ark., Inc. v. Pope County, 2012 Ark. App. 
231, — S.W.3d — (2012). 



15-71-115. Abandoned and Orphaned Well Plugging Fund. 



A.C.R.C. Notes. Acts 2012, No. 272, 
§ 6, provided: "FUND TRANSFER. The 
Oil and Gas Commission, after receiving 
review from the Chief Fiscal Officer of the 



State and the Legislative Council, may 
request the Chief Fiscal Officer to transfer 
up to $750,000 per year on his or her 
books and the books of the State Trea- 



15-72-304 PRACTICE, PROCEDURE, AND COURTS 210 

surer and the Auditor of the State from Abandoned and Orphaned Well Plugging 
the Oil and Gas Commission Fund to the Fund." 

CHAPTER 72 
OIL AND GAS PRODUCTION AND CONSERVATION 

Subchapter 3 — Pools and Drilling Units 

15-72-304. Integration orders generally. 

CASE NOTES 

Reasonable Compensation. and a reasonable basis. Walls v. Ark. Oil & 
Neither subdivision (b)(4) of this section Gas Comm'n, 2012 Ark. 418, — S.W.3d — , 
nor any administrative rule required the 2012 Ark. LEXIS 439 (Nov. 8, 2012). 
Arkansas Oil & Gas Commission to award Decision of the Arkansas Oil and Gas 
as compensation for the forced integra- Commission that the owners' compensa- 
tion, or pooling, of mineral interests in a tion be at a rate of $ 500 per net mineral 
natural-gas drilling unit the highest price acre and a one-eighth royalty was sup- 
contracted for within the drilling unit. As ported by substantial evidence as: (1) this 
set forth in the statute, the more flexible section did not require the Commission to 
standard of reasonableness applies. Walls award the highest bonus historically paid; 
v. Ark. Oil & Gas Comm'n, 2012 Ark. App. (2) this section required only reasonable 
110, — S.W.3d — (2012). consideration and a reasonable basis; and 
This section does not require the Arkan- (3) there was evidence that the corpora- 
sas Oil and Gas Commission to award the tion had about 265 acres under lease and 
highest bonus historically paid when un- that the best terms paid were $ 800 and a 
leased mineral owners are directed to one-sixth royalty, $ 500 and a one-eighth 
transfer their rights in a drilling unit and royalty, and $ 225 and a three-sixteenths 
the product from the unit well to the royalty. Walls v. Ark. Oil & Gas Comm'n, 
parties who elect to participate therein; it 2012 Ark. 418, — S.W3d — , 2012 Ark. 
requires only reasonable consideration LEXIS 439 (Nov. 8, 2012). 

TITLE 16 
PRACTICE, PROCEDURE, AND COURTS 

SUBTITLE 6. CRIMINAL PROCEDURE GENERALLY 

CHAPTER. 

90. JUDGMENT AND SENTENCE GENERALLY. 



211 INTERSTATE AND INTERNATIONAL PROCEDURE ACT 16-4-101 

SUBTITLE 1. GENERAL PROVISIONS 

CHAPTER 4 

UNIFORM INTERSTATE AND INTERNATIONAL 
PROCEDURE ACT 



16-4-101. Personal jurisdiction of Arkansas courts. 

CASE NOTES 



Analysis 

Contacts Not Found. 
Due Process. 
— Contacts Not Found. 
Foreign Company. 

Contacts Not Found. 

Motion to dismiss was granted because 
although plaintiff argued that general 
personal jurisdiction was satisfied be- 
cause auto parts manufactured by defen- 
dants were ultimately included in cars 
sold extensively in the state, this "stream 
of commerce" argument was not an ad- 
equate basis for the exercise of general 
jurisdiction. P.A.M. Transp., Inc. v. Faure- 
cia Auto. Seating, Inc., — F. Supp. 2d — , 
2011 U.S. Dist. LEXIS 124189 (W.D. Ark. 
Oct. 26, 2011). 

Due Process. 

Based upon the allegations in the com- 
plaint and the employee's affidavit that 
his only contacts with Arkansas were by 
telephone and correspondence, the em- 
ployee's contacts with Arkansas were in- 
sufficient to establish minimum contacts 
so as to justify exercise of personal juris- 
diction. U.S. Bank N.A. ND v. Elender 
Escrow, Inc., — F. Supp. 2d — , 2011 U.S. 
Dist. LEXIS 134690 (E.D. Ark. Nov. 21, 
2011). 

Co-conspirators' contacts with Arkan- 
sas were insufficient to establish the req- 
uisite minimum contacts to justify exer- 
cise of personal jurisdiction over them or 
conspiracy jurisdiction over their co-con- 
spirators. Conspiracy jurisdiction only ap- 
plied when at least one of the conspirators 
had minimum contacts with Arkansas in 
furtherance of the conspiracy and such 
contacts had not been pled. U.S. Bank 
N.A. ND v. Elender Escrow, Inc., — F. 
Supp. 2d — , 2011 U.S. Dist. LEXIS 
134690 (E.D. Ark. Nov. 21, 2011). 



Personal jurisdiction based on the con- 
spiracy theory did not violate due process. 
As such, the use of the conspiracy theory 
of in personam jurisdiction does not vio- 
late this section, Arkansas's long arm 
statute. Gibbs v. Primelending, 2011 Ark. 
255, — S.W.3d — (2011). 

Court properly exercised personal juris- 
diction over the judgment debtors, be- 
cause the complaint arose out of and was 
directly related to the 2003 judgments, 
which were entered in Arkansas and re- 
main unsatisfied; the debtors entered into 
or guaranteed several loan contracts with 
an Arkansas bank and pledged Arkansas 
real estate as collateral, and the debtors 
defaulted on the loans and an Arkansas 
court entered judgments against them. 
Hauser v. Sims, 2012 Ark. App. 295, — 
S.W.3d — (2012). 

— Contacts Not Found. 

District court did not have personal 
jurisdiction over defendants, an Iowa citi- 
zen and limited liability company, because 
the only contact with Arkansas was a 
single meeting by the parties in Arkansas; 
because defendants' trip to Arkansas (and 
their failure to obtain permission to use 
plaintiffs mark) did not cause or other- 
wise precipitate the alleged infringement, 
and nothing in the record showed any 
other connection to Arkansas, the contact 
with Arkansas was insufficient to permit 
the exercise of personal jurisdiction con- 
sistent with the Due Process Clause. Pan- 
gaea, Inc. v. Flying Burrito LLC, 647 F.3d 
741 (8th Cir. 2011). 

Foreign Company. 

Arkansas did not have general jurisdic- 
tion over a Japanese manufacturer pursu- 
ant to subdivision (B) of this section in a 
wrongful-death suit arising from a tractor 
accident because the manufacturer was 



16-10-108 



PRACTICE, PROCEDURE, AND COURTS 



212 



not itself doing business in Arkansas and 
did not dominate and control its American 
subsidiary, which sold tractors in Arkan- 
sas through authorized dealers, such that 



personal jurisdiction could be predicated 
on an alter ego relationship. Yanmar Co., 
Ltd. v. Slater, 2012 Ark. 36, — S.W.3d — 
(2012). 



SUBTITLE 2. COURTS AND COURT OFFICERS 

CHAPTER 10 
GENERAL PROVISIONS 

Subchapter 1 — General Provisions 



16-10-108. Contempt. 



CASE NOTES 



Analysis 

Actions Constituting Contempt. 
— Disobeying Order. 

Actions Constituting Contempt. 

— Disobeying Order. 

In a criminal contempt case under sub- 
division (a)(3) of this section, substantial 



evidence supported the trial court's deter- 
mination that defendant willfully violated 
the court's orders requiring her to make 
restitution payments because defendant 
testified that she received a monthly dis- 
ability check in the amount of $633 but 
did not use the money to make restitution 
payments. Summers v. State, 2012 Ark. 
App. 247, — S.W.3d — (2012). 



16-10-110. Seals. 



CASE NOTES 



Cited: Unimeks, LLC v. Purolite, 2012 
Ark. 20, — S.W.3d — (2012). 

16-10-133. Trial court staff. 

A.C.R.C. Notes. Acts 2012, No. 245, 
§ 3, provided: "RATE OF PAY. The entry 
level salary of a trial court staff person 
shall be equal to that established in the 
state pay plan at grade C117." 

Acts 2012, No. 245, § 4, provided: 
"CERTIFICATION. Any Trial Court Ad- 
ministrative Assistant who is or becomes 
certified by the National Center for State 



Courts as a certified Court Manager shall 
be entitled to have the annual salary for 
which he or she is eligible to be increased 
by ten percent (10%), which shall not 
exceed the maximum amount for the 
grade assigned. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 3 — Uniform Filing Fees and Court Costs 
16-10-312. Distribution of State Administration of Justice Fund. 



A.C.R.C. Notes. Acts 2012, No. 281, 
§ 59, provided: "DISTRIBUTION OF AD- 
MINISTRATION OF JUSTICE FUNDS. 



In the event that the fund balance in the 
Administration of Justice Fund is inad- 
equate to fund the monthly allocation to 



213 



CIRCUIT COURTS 



16-11-301 



State Agencies, the funds will be distrib- 
uted as follows: 

"All monthly allocations to State Agen- 
cies will be funded in the percentage of the 
total funds available in the Administra- 
tion of Justice Fund; that is if less than 
100% of the total monthly allocation is 
available for distribution, all monthly al- 
locations to State Agencies will be funded 
at an equal percentage consistent with the 
available funds, provided that any of the 



allocations listed in Section 60 that have 
been fully pledged prior to January 1, 
2001 to the repayment of a bond issue or 
bond issues shall not be reduced below the 
amount listed in Section 60. Any shortage 
from one month will be adjusted in future 
months' payments as funds become avail- 
able. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 11 
SUPREME COURT 

Subchapter 1 — General Provisions 

16-11-106. Issuance of writs and process. 

CASE NOTES 



Attorney General. 

On appeal of the order granting a per- 
manent guardianship of appellant's son to 
his grandmother, the Supreme Court of 
Arkansas did not address the merits of 
appellant's constitutional challenge to the 
guardianship statutes, §§ 28-65-101 to 



28-65-707, because the attorney general 
was not notified of the challenge as re- 
quired by subsection (b) of this section and 
there had not been a complete adversarial 
development of the constitutional issues. 
Mahavier v. Mahavier (In re A.M.), 2012 
Ark. 278, — S.W.3d — (2012). 






Subchapter 3 — Procedural Rules 

16-11-301. Rules of pleading, practice, and procedure — Super- 
session. 

CASE NOTES 



Application. 

Petition to revive a foreign judgment 
was properly granted because it was au- 
thenticated under Ark. R. Civ. P. 44 where 
it was signed by a clerk for a United 
States Bankruptcy Court; the Arkansas 
Supreme Court's rule-making authority 



over procedural matters was exclusive. It 
was argued that the proper authentica- 
tion process was not followed when a 
certified copy of the judgment was at- 
tached to an application. Bird v. Shaffer, 
2012 Ark. App. 464, — S.W.3d — (2012). 



CHAPTER 13 
CIRCUIT COURTS 

Subchapter 5 — Court Reporters 



A.C.R.C. Notes. Acts 2012, No. 110, 
3, provided: "TRANSCRIPTS. Official 



Court Reporters shall prepare transcripts, 
which are to be included within a record 



16-21-203 PRACTICE, PROCEDURE, AND COURTS 214 

on appeal, pursuant to the time require- porter Examiners. Failure of a Court Re- 

ments that are outlined in the Arkansas porter to report to his or her judge and to 

Supreme Court Rules. In the event an the Arkansas Board of Certified Court 

official Court Reporter fails to complete a Reporter Examiners shall result in the 

transcript within the prescribed time, he immediate suspension of the Court Re- 

or she shall immediately inform the judge, porter's license, pending a hearing before 

for whom he or she is employed, and the the Arkansas Board of Certified Court 

Arkansas Board of Certified Court Re- Reporter Examiners." 

CHAPTER 21 
PROSECUTING ATTORNEYS 



Subchapter 2 — Prosecutor Coordinator Act 

16-21-203. Prosecution Coordination Commission. 

A.C.R.C. Notes. Acts 2012, No. 91, § 4, of deputy prosecuting attorney salaries to 
provided: "LEGISLATIVE INTENT. It is state funding, it is not the intent of the 
the intent of the General Assembly, in the General Assembly to adversely affect 
transition to a state-funded deputy pros- those districts whose system has been 
ecuting attorney system, to provide an working well or to implement a system 
appropriate and adequate level of legal which is too inflexible to respond to the 
representation through deputy prosecut- needs of each judicial district. Therefore, 
ing attorneys in all areas of the state. It is the Prosecution Coordination Commission 
recognized by the General Assembly that is charged with the responsibility of as- 
inmany areas of the state, resources have sisting in the maintenance of a system 
not been available to support deputy pros- which equitably serves all areas of the 
ecuting attorney salaries at the necessary state by providing quality deputy pros- 
level. With the transition of local funding ecuting attorneys." 

CHAPTER 22 
ATTORNEYS AT LAW 

Subchapter 2 — Admission and Practice 

16-22-211. Corporations or associations — Practice of law or 
solicitation prohibited — Exceptions — Penalty. 

CASE NOTES 

Arbitration Proceedings. opted by Arkansas, and if a hearing is held 

Nonlawyer's representation of a corpo- during arbitration, the parties have the 

ration in arbitration proceedings consti- right to be heard, present evidence mate- 

tutes the unauthorized practice of law. rial to the controversy, and cross-examine 

Arbitration proceedings bear significant witnesses appearing at the hearing. Ni- 

indicia of legal proceedings under the Uni- sha, LLC v. Tribuilt Constr. Group, LLC, 

form Arbitration Act, which has been ad- 2012 Ark. 130, — S.W.3d — (2012). 



215 



ATTORNEYS AT LAW 
Subchapter 3 — Rights and Liabilities 



16-22-308 



16-22-308. Attorney's fees in certain civil actions. 

CASE NOTES 



Analysis 

Bankruptcy. 
Breach of Contract. 
Fees Allowed. 
Fees Denied. 
Prevailing Party. 
Rescission. 
Tort Action. 

Bankruptcy. 

Chapter 12 debtors' in possession 11 
U.S.C.S. § 544 cause of action allowed the 
debtors to set aside creditor bank's mort- 
gage lien due to the debtors' bona fide 
purchaser status, but was a cause of ac- 
tion peculiar to the Bankruptcy Code and 
differed from the types of actions which 
this section addressed. Thus this section 
was inapplicable to the avoidance action 
and the debtors were not entitled to their 
attorney's fees. Caine v. First State Bank 
(In re Caine), 462 B.R. 688 (Bankr. W.D. 
Ark. 2011). 

Debtor's obligation to pay attorneys' 
fees arising from a state court lawsuit 
involving breach of contract was dis- 
chargeable because the fee award was 
based on the parties' agreement that pro- 
vided that the losing party would pay for 
any dispute that arose between the par- 
ties, and this section, that awards attor- 
neys' fees and costs to the prevailing party 
on a breach of contract claim. Clear Sky 
Props. LLC v. Roussel (In re Roussel), 483 
Bankr. 915, 2012 Bankr. LEXIS 5590 
(Bankr. E.D. Ark. Dec. 3, 2012). 

Breach of Contract. 

Trial court did not err in awarding at- 
torney fees to real estate buyers in their 
breach of contract action because their 
request for fees was based on a contrac- 
tual provision, not the statute; hence, the 
buyers' inclusion of a tort claim for dam- 
ages was no impediment to an award of 
fees authorized under the real estate con- 
tract. Marx Real Estate Invs., LLC v. 
Coloso, 2011 Ark. App. 426, — S.W.3d — 
(2011). 

Trial court erred in awarding attorney's 
fees to appellees because its dismissal of 



appellant's complaint under Ark. R. Civ. P. 
12(b)(6) was improper; appellant alleged 
facts sufficient to support the application 
of fraudulent concealment and that the 
statutes of limitation were tolled. Russen- 
berger v. Thomas Pest Control, Inc., 2012 
Ark. App. 86, — S.W.3d — (2012). 

Fees Allowed. 

Section 18-50-117 required nonresident 
mortgagee to be authorized to do business 
in Arkansas, and noncompliance was not 
cured by an attorney-in-fact under § 18- 
50-102, not superseded by Ark. Code Ann. 
§ 4-27-1501, and not preempted by 12 
U.S.C.S. § 24 and 371 of the National 
Banking Act. Attorney's fees were 
awarded underthis section. In re Johnson, 
460 B.R. 234 (Bankr. E.D. Ark. 2011). 

District court's calculation of an attor- 
ney fee award was supported by the de- 
tailed affidavits and time sheets attached 
to appellees' motion for attorneys' fees; 
because the case involved a complicated 
factual background, the potential for mil- 
lions of dollars in liability, and a 10 count 
initial complaint that included 555 pages 
of exhibits, the district court did not abuse 
its discretion in awarding attorneys' fees. 
Retro TV Network, Inc. v. Luken Com- 
muns, LLC, — F.3d — , 2012 U.S. App. 
LEXIS 21569 (8th Cir. Oct. 17, 2012). 

Because counsel for defendants were 
experienced attorneys with excellent legal 
skills, potentially millions of dollars were 
at stake and defendants prevailed on all of 
plaintiffs claims, and the attorneys 
charged reasonable hourly rates, under 
this section, counsel for defendants were 
entitled to an award of $46,795 in attor- 
neys fees. Retro TV Network, Inc. v. 
Luken Communs., LLC, — F. Supp. 2d — , 
2012 U.S. Dist. LEXIS 27679 (E.D. Ark. 
Mar. 2, 2012). 

Fees Denied. 

As claims by an estate executrix of 
fraud, estoppel, and fiduciary-duty were 
paramount, and a contract claim was not 
the primary basis for the action, the trial 
court properly refused to awarded attor- 



16-22-309 



PRACTICE, PROCEDURE, AND COURTS 



216 



ney fees to the prevailing party pursuant 
to this section. Gibbs v. Bumgarner, 2012 
Ark. App. 81, — S.W.3d — (2012). 

Prevailing Party. 

In an action by home buyers against the 
sellers for recovery of the earnest money, 
in which the sellers asserted a counter- 
claim for damages for breach of contract, 
which resulted in a decision that the sell- 
ers were not entitled to damages but were 
entitled to keep the earnest money, nei- 
ther party was the prevailing party for 
purposes of awarding attorney's fees un- 
der this section or the terms of the parties' 
real estate contract, or for costs under 
Ark. R. Civ. P. 54(d)(2). Brackelsberg v. 
Heflin, 2011 Ark. App. 678, — S.W.3d — 
(2011). 

Trial court did not err in awarding at- 
torney fees to the purchaser of an account- 
ing office in a breach of contract action 
because the purchaser was the prevailing 
party; while the trial court dismissed the 
purchaser's claims for fraud, reimburse- 
ment of the purchase money for the build- 
ing, and tortious interference, it awarded 
the purchaser all of the purchaser's re- 
quested fees. Spann v. Lovett & Co., 2012 
Ark. App. 107, — S.W.3d — (2012). 

Circuit court did not abuse its discretion 
in finding that the client was the prevail- 
ing party where she successfully defended 
the breach-of-contract claim; the court 
limited the fee award and a successful 
defendant in a contract action could be 
considered a "prevailing party" for the 
purposes of this section. Harrill & Sutter 
P.L.L.C. v. Kosin, 2012 Ark. 385, — S.W.3d 
— (2012). 



While appellants were granted sum- 
mary judgment on individual claims 
against them, appellee recovered a judg- 
ment against appellants' company, and 
thus appellee was a prevailing party in 
terms of the entirety of the case; thus, the 
trial court did not err in denying appel- 
lants' motion for attorney fees. Armstrong 
Remodeling & Constr., LLC v. Cardenas, 
2012 Ark. App. 387, — S.W.3d — (2012). 

Rescission. 

Remedy of rescission in a contract case 
does not foreclose this section's authoriza- 
tion for attorney's fees in a breach-of- 
contract case. Where a trial court's order 
and its oral findings indicate that a case 
sounded primarily in contract, rather 
than in tort, and the trial court was mis- 
led by dicta in case law, a remand was 
necessary for the reconsideration of a mo- 
tion for fees. Beck v. Inter City Transp., 
Inc., 2012 Ark. App. 370, — S.W.3d — 
(2012). 

Tort Action. 

Attorney fees should not have been 
awarded under this section because the 
action was not primarily based in con- 
tract; the case sounded primarily in tort 
because, in order for a cause of action for 
legal malpractice to be maintained, the 
contractual relationship requirement in 
§ 16-22-310 had to be met. The core dis- 
pute was whether there was an oral con- 
tract to make a claim against an attorney 
and his legal-malpractice carrier. Howard 
v. Adams, 2012 Ark. App. 562, — S.W.3d — 
(2012). 

Cited: Worley v. City of Jonesboro, 
2011 Ark. App. 594, — S.W3d — (2011). 



16-22-309. Attorney's fees in actions lacking justiciable issue. 

CASE NOTES 



Fees. 

Although appellant did not prevail, his 
claim was supported, and thus the court 
could not find that there was a complete 



absence of a justiciable issue and the trial 
court erred in ordering the payment of 
fees. Laster v. Williams, 2012 Ark. App. 
282, — S.W.3d — (2012). 



217 EXAMINATION AND CHALLENGE 16-33-305 

16-22-310. Liability for civil damages. 

CASE NOTES 

Attorney Fees. contractual relationship requirement in 
Attorney fees should not have been this section had to be met. The core dis- 
awarded under § 16-22-308 because the pute was whether there was an oral con- 
action was not primarily based in con- tract to make a claim against an attorney 
tract; the case sounded primarily in tort and his legal-malpractice carrier. Howard 
because, in order for a cause of action for v. Adams, 2012 Ark. App. 562, — S.W.3d — 
legal malpractice to be maintained, the (2012). 

SUBTITLE 3. JURIES AND JURORS 

CHAPTER 31 
JUROR QUALIFICATIONS AND EXEMPTIONS 

16-31-102. Disqualifications. 

CASE NOTES 

Opinion. late subdivision (b)(3) of this section, as 

In a rape prosecution where the victim the jurors were not asked to agree that 

was a police officer, the fact that the pros- rape could occur without force, but the 

ecutor asked the jurors during voir dire to questions were directed to the amount of 

agree that a combat trained person could force necessary McElroy v. State, 2011 

be raped with minimal force did not vio- Ark. App. 533, — S.W.3d — (2011). 

CHAPTER 33 
EXAMINATION AND CHALLENGE 

Subchapter 3 — Criminal Proceedings 

16-33-305. Challenge to trial jurors — Individual juror — Pe- 
remptory. 

CASE NOTES 

Challenge Precluded. after having exhausted her three peremp- 

In a driving while intoxicated case, ap- tory challenges. Carruth v. State, 2012 

pellant was unable to challenge the jurors Ark. App. 305, — S.W.3d — (2012). 

on the basis of bias because appellant did Cited: Carruth v. State, — Ark. App. 

not object at the end of the selection _ _ s.W.3d — , 2012 Ark. App. LEXIS 

process, and there was no evidence that 432 (May 2 2012). 
appellant was forced to accept a juror 



16-42-101 PRACTICE, PROCEDURE, AND COURTS 

SUBTITLE 4. EVIDENCE AND WITNESSES 



218 



CHAPTER 42 
SEXUAL OFFENSES 

16-42-101. Admissibility of evidence of victim's prior sexual 
conduct. 

CASE NOTES 



Analysis 

Constitutionality. 
Admissibility. 
Preservation. 
Relevance. 

Constitutionality. 

In a case in which defendant was con- 
victed of four counts of sexual assault of a 
minor, the trial court properly upheld the 
constitutionality of the rape shield stat- 
ute. The statute survived defendant's 
separation of powers challenge. Nelson v. 
State, 2011 Ark. 429, — S.W.3d — (2011). 

Admissibility. 

Defendant's conviction for raping his 
daughter under § 5-14-103(a)(4)(A)(i) was 
appropriate because the evidence was suf- 
ficient and because the circuit court prop- 
erly denied defendant's rape-shield mo- 
tions. Consent was never an issue in a 
rape-by-guardian case, and when consent 
was not an issue, whether the victim had 
sexual relations with a third person was 
entirely collateral and irrelevant under 
subsections (b) and (c) of this section. 
Vance v. State, 2011 Ark. 392, — S.W.3d — 
(2011). 



Preservation. 

Defendant failed to preserve for review 
his argument that a court erred during his 
rape trial in not allowing testimony con- 
cerning the victim's previous sexual con- 
duct; he failed to follow the procedure set 
forth in subsection (c) of this section for 
establishing relevancy and admissibility 
of evidence otherwise excluded by the 
rape-shield statute. Stewart v. State, 2012 
Ark. 349, — S.W.3d — (2012). 

Relevance. 

In a case in which the Director of the 
Arkansas Department of Correction ap- 
pealed a district court's decision to grant 
an inmate's 28 U.S.C.S. § 2254 petition 
for a writ of habeas corpus in which the 
inmate argued that the trial judge vio- 
lated his constitutional right to present a 
defense by excluding evidence of the vic- 
tim's prior sexual history pursuant to this 
section, the rape shield statute, the trial 
court determined that the evidence was 
irrelevant, and the decision by the Su- 
preme Court of Arkansas to uphold the 
evidentiary ruling of the trial court was 
not contrary to, nor did it involve an 
unreasonable application of, clearly estab- 
lished federal law. Jackson v. Norris, 651 
F.3d 923 (8th Cir. 2011). 



219 DOCUMENTARY EVIDENCE GENERALLY 16-46-108 

CHAPTER 43 
WITNESSES GENERALLY 

Subchapter 2 — Securing Attendance Generally 

16-43-212. Criminal proceedings — Issuance of subpoenas pur- 
suant to investigations. 

CASE NOTES 

Authority of Prosecutor. tor's subpoena requests were not unrea- 

During a capital murder trial, the court sonable in scope or irrelevant; the 

did not err in admitting text messages prosecutor did not abuse the prosecutor's 

from a cellular telephone number as- subpoena power. Gulley v. State, 2012 

signed to defendant because the prosecu- Ark. 368, — S.W.3d — (2012). 

Subchapter 9 — Paternity or Child Support 

16-43-901. Competent witnesses. 

CASE NOTES 

Cited: Putt v. Suttles, 2011 Ark. App. 
688, — S.W.3d — (2011). 

CHAPTER 46 
DOCUMENTARY EVIDENCE GENERALLY 

Subchapter 1 — General Provisions 

16-46-108. Photographically reproduced records admissible in 
court. 

CASE NOTES 

Admissibility. with subsection (b) of this section. The 

In an action to collect unpaid credit card cardholder never claimed a lack of notice 

debt, the trial court abused its discretion and made no objection to the admission of 

in excluding business records which re- the business records. Ozark Capital Corp. 

fleeted a credit card debt owed by the v. Pullen, 2012 Ark. App. 652, — S.W.3d 

cardholder because the documents were — , 2012 Ark. App. LEXIS 771 (Nov. 14, 

supported by an affidavit that complied 2012). 



16-47-101 PRACTICE, PROCEDURE, AND COURTS 220 

CHAPTER 47 
ACKNOWLEDGMENT AND PROOF OF INSTRUMENTS 

Subchapter 1 — General Provisions 

16-47-101. Proof or acknowledgment as prerequisite to record- 
ing real estate conveyances. 

CASE NOTES 



Lis Pendens. 

As a lis pendens is not an instrument in 
writing for the conveyance of any real 
estate or by which any real estate may be 
affected in law or equity, acknowledgment 



of the lis pendens is not required under 
this section. Benefit Bank v. Rogers, 2012 
Ark. 419, — S.W.3d — , 2012 Ark. LEXIS 
434 (Nov. 8, 2012). 



SUBTITLE 5. CIVIL PROCEDURE GENERALLY 

CHAPTER 55 
GENERAL PROVISIONS 

Subchapter 2 — Civil Justice Reform Act of 2003 

16-55-201. Modification of joint and several liability. 

CASE NOTES 



Analysis 

Construction. 
Jury Instructions. 

Construction. 

This section plainly provides that liabil- 
ity is to be apportioned with regard to 
"each defendant." Where there is only one 
defendant, this section is inapplicable. 
Proassurance Indem. Co. v. Metheny, 2012 
Ark. 461, — S.W.3d — , 2012 Ark. LEXIS 
499 (Dec. 13, 2012). 

Jury Instructions. 

In a medical negligence case that Was 
brought against a liability insurer after a 



surgeon operated on the wrong side of the 
patient's brain, the circuit court did not 
abuse its discretion in refusing to submit 
non-model jury instructions that would 
have required the jury to apportion liabil- 
ity to parties who were not defendants; 
the circuit court properly instructed the 
jury to allocate the fault of the hospital 
where the surgery was performed only to 
the insurer. Proassurance Indem. Co. v. 
Metheny, 2012 Ark. 461, — S.W.3d — , 
2012 Ark. LEXIS 499 (Dec. 13, 2012). 



221 



GENERAL PROVISIONS 



16-55-208 



16-55-206. Standards for award of punitive damages. 

CASE NOTES 



Analysis 

Conduct Not Warranting Punitive Dam- 
ages. 
Relevant Evidence. 

Conduct Not Warranting Punitive 

Damages. 

In this action for negligent hiring, train- 
ing, supervision or monitoring, and reten- 
tion, defendants were granted summary 
judgment on plaintiffs' claims for punitive 
damages because plaintiffs had not pro- 
vided evidence that would allow a reason- 
able jury to find that defendants knew or 
ought to have known that their conduct 
would naturally and probably result in 
injury or damage to the victim. Perry v. 
Stevens Transp., Inc., — F. Supp. 2d — , 
2012 U.S. Dist. LEXIS 94942 (E.D. Ark. 
July 9, 2012). 

Alleged violations of the Federal Motor 
Carrier Safety Regulations did not sup- 
port a punitive-damages award, because 



there was no evidence that the driver had 
been drinking alcohol or using controlled 
substances prior to the accident or that he 
was or appeared to be under the influence 
of alcohol or any controlled substances at 
the time of the accident. Brumley v. 
Keech, 2012 Ark. 263, — S.W.3d — (2012). 

Relevant Evidence. 

Defendants were not entitled to sum- 
mary judgment on punitive damages be- 
cause a reasonable juror could find that 
defendant property owner, acting on be- 
half of defendant entities, knew or had 
reason to know that proceeding with ex- 
cavation of the hillside without a recom- 
mended retaining wall in place would in- 
flict injury to plaintiffs property, but he 
proceeded with excavation with conscious 
indifference to the consequences, from 
which malice may be inferred. Rivercliff 
Co. v. Residences at Riverdale GP, LLC, — 
F. Supp. 2d — , 2011 U.S. Dist. LEXIS 
139158 (E.D. Ark. Dec. 2, 2011). 



16-55-207. Burden of proof for award of punitive damages. 

CASE NOTES 



Summary Judgment Denied. 

Defendants were not entitled to sum- 
mary judgment on punitive damages be- 
cause a reasonable juror could find that 
defendant property owner, acting on be- 
half of defendant entities, knew or had 
reason to know that proceeding with ex- 
cavation of the hillside without a recom- 



mended retaining wall in place would in- 
flict injury to plaintiffs property, but he 
proceeded with excavation with conscious 
indifference to the consequences, from 
which malice may be inferred. Rivercliff 
Co. v. Residences at Riverdale GP, LLC, — 
F. Supp. 2d — , 2011 U.S. Dist. LEXIS 
139158 (E.D. Ark. Dec. 2, 2011). 



16-55-208. Limitations on the amount of punitive damages. 

CASE NOTES 



Constitutionality. 

This section was unconstitutional under 
Ark. Const. Art. 5, § 32, because it limited 
the amount of recovery outside of an em- 
ployment relationship. Therefore, a puni- 
tive damage award of $42 million against 



a manufacturer of genetically altered rice 
that allowed its rice to contaminate con- 
ventional seed was upheld. Bayer Crop- 
Science LP v. Schafer, 2011 Ark. 518, — 
S.W.3d — (2011). 



16-55-213 PRACTICE, PROCEDURE, AND COURTS 

16-55-213. Venue. 



222 



CASE NOTES 



Review. 

Even though an issue relating to venue 
was not waived because a compulsory 
counterclaim under Ark. R. Civ. .P. 13(a) 
was filed, instead of a permissive counter- 
claim, an appellate court still could not 
reach the issue on review because an 
argument regarding whether subsection 
(a) of this section repealed § 16-60- 
111(a)(1) by implication was not raised 



below. In the motion for a change of venue, 
it was argued that the matter should have 
been transferred to a county where an 
executrix was a resident since the cause of 
action arose there, all witnesses resided 
there, and the official record and other 
matters related to the case were on record 
there. Richardson v. Brown, 2012 Ark. 
App. 535, — S.W.3d — (2012). 



CHAPTER 56 
LIMITATION OF ACTIONS 

Subchapter 1 — General Provisions 



16-56-105. Actions with limitation of three years. 

CASE NOTES 



Analysis 

Construction. 
Attorneys. 
Contracts Generally. 
Employment Contracts. 
Fraud and Deceit. 
Tolling of Statute. 
Torts. 

Construction. 

Summary judgment was properly 
granted in favor of a construction com- 
pany in a negligent construction case be- 
cause a lawsuit was not filed until after 
the three-year period in subsection (3) of 
this section had run; there was no evi- 
dence that the company had performed 
any repairs or that repairs were done on 
its behalf, and, even if repair work had 
been done on the company's behalf, the 
statute of limitations would have only 
been tolled during the period of repairs, 
which was not of sufficient length to ren- 
der the claim timely. Without proof of the 
attempted repairs, the statute of repose in 
§ 16-56-112(a) did not come into play, and 
there was no tolling of the three-year 
statute of limitations. Marshall v. Turman 
Constr. Corp., 2012 Ark. App. 686, — 



S.W.3d — , 2012 Ark. 
(Dec. 5, 2012). 



App. LEXIS 806 



Attorneys. 

Circuit court did not err by dismissing 
appellants' legal malpractice claims 
against their attorney, because they were 
barred by the three-year statute of limita- 
tions under this section; although appel- 
lants attempted to categorize the claims 
differently, the "gist" of their complaint 
was legal malpractice. The circuit court 
did not err in failing to apply the discovery 
rule, because the traditional occurrence 
rule applied in Arkansas; and appellants 
did not bring their action within three 
years of the last alleged negligent act. 
Richardson v. Madden, 2012 Ark. App. 
120, — S.W.3d — (2012). 

Contracts Generally. 

Written security agreement was a suffi- 
cient acknowledgment of a valid existing 
debt for attorney's fees so as to start the 
statute of limitations running anew. How- 
ever, the written acknowledgement did 
not transform the oral agreement for fees 
into a written one, and the three-year 
statute applicable to oral agreements un- 
der this section still applied, rather than 
the five-year statute for written agree- 



223 



LIMITATION OF ACTIONS 



16-56-111 



merits under § 16-56-111, thereby barring 
an attorney's claim for fees. Still v. Perroni 
Law Firm, 2011 Ark. 447, — S.W.3d — 
(2011). 

Employment Contracts. 

Three-year statue of limitations set 
forth in this section applies to private 
causes of action brought pursuant to the 
Arkansas Minimum Wage Act, § 11-4- 
218(e), because § 11-4-2 18(e) constitutes 
a liability created expressly by statute, 
and it does not include a specific limita- 
tions provision; where a cause of action is 
brought pursuant to a statute that does 
not expressly provide a limitations period, 
this section is the appropriate limitations 
provision. Douglas v. First Student, Inc., 
2011 Ark. 463, — S.W.3d — (2011). 

Fraud and Deceit. 

Trial court did not err in granting a law 
firm's partial motion for summary judg- 
ment based on the three-year statute of 
limitations under subdivision (1) of this 
section, and dismissing an attorney's 
counterclaim for constructive fraud be- 
cause the firm presented evidence that it 
was unaware of an erroneous fee percent- 
age until after the litigation began, and 



the attorney failed to meet proof with 
proof. Grayson & Grayson, P.A. v. Couch, 
2012 Ark. App. 20, — S.W.3d — (2012). 

Tolling of Statute. 

Claims by mineral lessors, including 
under the Arkansas Deceptive Trade 
Practices Act, § 4-88-101 et seq., were 
properly dismissed as time-barred under 
this section and § 4-88-115 where they 
were brought more than five years after 
the leases were executed; fraud was not 
sufficiently shown for purposes of tolling. 
Hipp v. Vernon L. Smith & Assocs., 2011 
Ark. App. 611, — S.W.3d — (2011). 

Torts. 

In a foreclosure case involving a con- 
struction loan, summary judgment was 
properly granted on the borrower's non- 
suited counterclaims for negligence and 
interference with business expectancies, 
which were untimely under this section 
because they were filed more than three 
years after the lender refused further 
funding of the loan and were not saved by 
§ 16-56-126 because they were filed more 
than two years after the voluntary non- 
suit. Grand Valley Ridge, LLC v. Metro. 
Nat'l Bank, 2012 Ark. 121, — S.W.3d — 
(2012). 



16-56-111. Notes and instruments in writing and other writings. 

CASE NOTES 



i 



Analysis 

Applicability. 
Debts. 
Insurance. 

Written Acknowledgement of Oral Con- 
tract. 

Applicability. 

Circuit court did not err by dismissing 
appellants' legal malpractice claims 
against their attorney, because they were 
barred by the three-year statute of limita- 
tions under this section. Although appel- 
lants attempted to categorize the claims 
differently, the "gist" of their claim was 
legal malpractice; therefore, the five-year 
statute of limitations set forth in this 
section did not apply. Richardson v. Mad- 
den, 2012 Ark. App. 120, — S.W.3d — 
(2012). 



Debts. 

Because appellee lender received insur- 
ance payments when the collateral for a 
promissory note was damaged in a fire, 
the trial court did not err in finding that 
the five-year statute of limitations for an 
action on the note was tolled under sub- 
section (b) of this section by partial pay- 
ments. Payton v. Coleman, 2012 Ark. App. 
160, — S.W.3d — (2012). 

Insurance. 

Insured's breach of contract suit, which 
was brought outside an accidental death 
and dismemberment policy's three-year 
time limit, was timely. A§ 23-79-202 pre- 
cluded the insurer from contractually 
shortening the limitations period to less 
than the five-year period for breach of 
contract actions under subsection (a) of 
this section. Graham v. Hartford Life & 



16-56-112 



PRACTICE, PROCEDURE, AND COURTS 



224 



Accident Ins. 
2012). 



Co., 677 F.3d 801 (8th Cir. 



Written Acknowledgement of Oral 
Contract. 

Written security agreement was a suffi- 
cient acknowledgment of a valid existing 
debt for attorney's fees so as to start the 
statute of limitations running anew. How- 
ever, the written acknowledgement did 



not transform the oral agreement for fees 
into a written one, and the three-year 
statute applicable to oral agreements un- 
der § 16-56-105 still applied, rather than 
the five-year statute for written agree- 
ments under this section, thereby barring 
an attorney's claim for fees. Still v. Perroni 
Law Firm, 2011 Ark. 447, — S.W3d — 
(2011). 



16-56-112. Design, planning, supervision, or observation of con- 
struction, repair, etc. — Actions for property dam- 
age, personal injury, or wrongful death. 



CASE NOTES 



Analysis 

Applicability. 
Action Barred. 

Applicability. 

Summary judgment was properly 
granted in favor of a construction com- 
pany in a negligent construction case be- 
cause a lawsuit was not filed until after 
the three-year period in § 16-56-105(3) 
had run; there was no evidence that the 
company had performed any repairs or 
that repairs were done on its behalf, and, 
even if repair work had been done on the 
company's behalf, the statute of limita- 
tions would have only been tolled during 
the period of repairs, which was not of 
sufficient length to render the claim 
timely. Without proof of the attempted 
repairs, the statute of repose in subsection 
(a) of this section did not come into play, 
and there was no tolling of the three-year 
statute of limitations. Marshall v. Turman 
Constr. Corp., 2012 Ark. App. 686, — 



S.W.3d — , 2012 Ark. App. LEXIS 806 
(Dec. 5, 2012). 

Action Barred. 

Because subsection (f) of this section 
unambiguously prohibited the parties to a 
construction contract from extending, by 
agreement or otherwise, the five-year- 
limitations period set forth in subsection 
(a), the architect and designer were prop- 
erly awarded partial summary judgment 
in an owner's breach of contract action. 
First Elec. Coop. Corp. v. Black, Corley, 
Owens & Hughes, P. A., 2011 Ark. App. 
447, — S.W.3d — (2011). 

Even though they relied on a written 
builder's warranty, the crux of homeown- 
ers' complaint was that they were dam- 
aged by the defective construction of their 
house. This fit squarely within this sec- 
tion, the statute of repose, and therefore 
their action brought more than five years 
after the home was completed was barred. 
Varadan v. Pagnozzi, 2012 Ark. App. 700, 
— S.W.3d — , 2012 Ark. App. LEXIS 824 
(Dec. 12, 2012). 



16-56-114. Judgments and decrees. 

CASE NOTES 



Foreign Judgments. 

Petition to revive a foreign judgment 
was not barred by the running of the 
statute of limitations under this section 
because the application was filed well 
within the 10 year period of a judgment 
that was registered in 2003; even if a 
judgment filed in 2001 was the appropri- 



ate judgment to begin the running of the 
limitations period, the application was 
still timely because it was filed exactly 10 
years from the date the judgment. The 
day that the judgment was entered was 
not counted in computing the limitations 
period. Bird v. Shaffer, 2012 Ark. App. 464, 
— S.W.3d — (2012). 



225 



LIMITATION OF ACTIONS 



16-56-126 



16-56-115. Limitation of actions not otherwise provided for. 

CASE NOTES 

Cited: Douglas v. First Student, Inc., 
2011 Ark. 463, — S.W.3d — (2011). 

16-56-126. Commencement of new action or filing mandate after 
nonsuit or arrest or reversal of judgment. 

CASE NOTES 



Analysis 

In General. 

Nonsuit. 

Tolling Statute of Limitations. 

In General. 

A plaintiff may only invoke this section, 
Arkansas's savings statute, if the plaintiff 
files the complaint before the period of 
limitations has expired and then com- 
pletes timely service on the defendant 
against whom the subsequent action is 
brought. Haynes v. Wire, — F. Supp. 2d — , 
2012 U.S. Dist. LEXIS 88743 (E.D. Ark. 
June 27, 2012). 

Nonsuit. 

Appellee's counterclaim for quiet title 
was not barred by subdivision (a)(1) of this 
section as a prior court did not treat 
appellee's affirmative defense of adverse 
possession as a counterclaim under § 18- 
61-101(a), and the nonsuit of the prior 
action did not affect the statute of limita- 
tions, which had not begun to run on the 
quiet title claim as appellee was still in 
possession of the property. Sutton v. Gard- 
ner, 2011 Ark. App. 737, — S.W.3d — 
(2011). 

Savings statute did not give an estate 
administrator a year to file a wrongful 
death suit following the Arkansas Work- 
ers' Compensation Commission's dis- 
missal of a workers' compensation claim, 
as the Commission's decision was not a 
"nonsuit"; the Commission denied the 
claim on the merits. Frisby v. Milbank 
Mfg. Co., 688 F.3d 540 (8th Cir. 2012). 



Tolling Statute of Limitations. 

Because the court denied class certifica- 
tion under Fed. R. Civ. P. 23 in an earlier 
filed case on the ground that the named 
plaintiffs were not typical of or adequate 
representatives for the class, it was not a 
reason equally applicable to any later suit, 
so American Pipe applied and the statute 
of limitations was tolled by the prior ac- 
tion. Under this section, the Arkansas's 
savings statute, the tolling gave plaintiffs 
one year after certification was denied in 
the prior action to commence a new action 
and receive the full protection of the prior 
action, and because plaintiffs filed the 
instant action within that year, they re- 
ceived the maximum benefit of the tolling, 
except that they could not recover from 
any further back than October 1, 2006, 
because prior to October 1, 2006, the em- 
ployer was exempt from the Arkansas 
Minimum Wage Act as it was subject to 
the minimum wage and overtime provi- 
sions of the Fair Labor Standards Act. 
Garner v. Butterball, LLC, — F. Supp. 2d 
— , 2012 U.S. Dist. LEXIS 21859 (E.D. 
Ark. Feb. 22, 2012). 

In a foreclosure case involving a con- 
struction loan, summary judgment was 
properly granted on the borrower's non- 
suited counterclaims for negligence and 
interference with business expectancies, 
which were untimely under § 16-56-105 
because they were filed more than three 
years after the lender refused further 
funding of the loan and were not saved by 
this section because they were filed more 
than two years after the voluntary non- 
suit. Grand Valley Ridge, LLC v. Metro. 
Nat'l Bank, 2012 Ark. 121, — S.W.3d — 
(2012). 



16-59-101 PRACTICE, PROCEDURE, AND COURTS 226 

CHAPTER 59 
LIS PENDENS 

16-59-101. Filing of notice required to constitute constructive 
notice of pending action. 

CASE NOTES 

Analysis pending at the time of the filing; therefore, 

a bank which later acquired a mortgage 
Acknowledgment. on the property was on notice that the 
Effect of Filing. property was being litigated in some fash- 
Priorities, ion. Benefit Bank v. Rogers, 2012 Ark. 
Acknowledgment. \ £ 9 > T f-W-M -, 2012 Ark. LEXIS 434 

As a lis pendens is not an instrument in (Nov. 8, 2012). 

writing for the conveyance of any real Priorities. 

estate or by which any real estate may be As the di ' vorce court did not uni i a terally 

affected in law or equity acknowledgment { e a Us deng on real egtate ag 

a In f rt f ,7°i m e r re l U R v securit y for a former husband's payment 

Ark. Code Ann. § 16-47-101. Benefit Bank /. v, -, „ < . . « ^ f : u . u 

r omo a v aiq q w q^i °* s P ousai support to appellee, but both 

2012^:^^34 S&.J, »3ft ^ parties agreed to its being imposed, the lis 

pendens was valid and appellee s interest 

Effect of Filing. in the property was senior to that of a 

As a husband voluntarily signed and his bank which later acquired a mortgage on 

wife filed a lis pendens against real prop- that property. Benefit Bank v. Rogers, 

erty before their divorce was final, litiga- 2012 Ark. 419, — S.W.3d — , 2012 Ark. 

tion relating to the property was clearly LEXIS 434 (Nov. 8, 2012). 

16-59-102. Contents of notice. 

CASE NOTES 

Cited: Benefit Bank v. Rogers, 2012 
Ark. 419, — S.W.3d — , 2012 Ark. LEXIS 
434 (Nov. 8, 2012). 

CHAPTER 60 
VENUE 

Subchapter 1 — General Provisions 

16-60-111. Actions on debt, account, or note. 

CASE NOTES 

Review. reach the issue on review because an 

Even though an issue relating to venue argument regarding whether § 16-55- 

was not waived because a compulsory 213(a) repealed subdivision (a)(1) of this 

counterclaim under Ark. R. Civ. P. 13(a) section by implication was not raised be- 

was filed, instead of a permissive counter- low. In the motion for a change of venue, it 

claim, an appellate court still could not was argued that the matter should have 



227 



PARTIES 



16-61-204 



been transferred to a county where an 
executrix was a resident since the cause of 
action arose there, all witnesses resided 
there, and the official record and other 



matters related to the case were on record 
there. Richardson v. Brown, 2012 Ark. 
App. 535, — S.W.3d — (2012). 



CHAPTER 61 
PARTIES 

Subchapter 1 — General Provisions 

16-61-105. Actions by insane persons. 

CASE NOTES 



Attorney. 

Because the acts of attorneys raised 
questions under Ark. R. Profl Conduct 
1.7, 1.14, and 1.16, the matter was re- 
ferred to the Supreme Court Committee 
on Professional Conduct to determine 



whether any disciplinary action was war- 
ranted; following their disqualification 
and the appointment of a guardian, the 
attorneys persisted in filing legal docu- 
ments on behalf of a ward. Kuelbs v. Hill, 
2011 Ark. App. 628, — S.W.3d — (2011). 



Subchapter 2 — Uniform Contribution Among Tortfeasors Act 

16-61-203. Judgment against one tortfeasor. 

CASE NOTES 



In General. 

Uniform Contribution Among Tortfea- 
sors Act, § 16-61-201 through -212, was 
not triggered in an action for personal 
injury arising from a motor vehicle acci- 
dent, and did not bear on the question of 
the validity of the circuit court's granting 
the defendant an offset against judgment 
in the amount of insurance proceeds pre- 



viously paid to the plaintiffs, because 
there was only one defendant at trial and 
nothing in the circuit court's order grant- 
ing the offset suggested that the offset was 
based on an earlier settlement between 
the plaintiffs and other defendants. 
Brown v. Lee, 2012 Ark. 417, — S.W.3d — , 
2012 Ark. LEXIS 436 (Nov. 8, 2012). 



16-61-204. Release — Effect on injured person's claim, 

CASE NOTES 



Agreements. 

Injured patient and a hospital agreed 
that they would inform the jury about a 
nurse anesthetist's settlement with the 
patient and that the hospital would waive 
its right to a credit; in other words, they 
agreed that the jury would solely deter- 
mine the hospital's liability and award 
monetary damages for harm caused by the 



hospital. An appellate court therefore re- 
fused to grant the patient's request that 
the jury assess the hospital's share alone 
and that the hospital pay its fair share of 
the damages. Villines v. N. Ark. Reg! Med. 
Ctr., 2011 Ark. App. 506, — S.W.3d — 
(2011), rehearing denied, — S.W.3d — , 
2011 Ark. App. LEXIS 688 (Ark. Ct. App. 
Oct. 26, 2011). 



16-62-101 PRACTICE, PROCEDURE, AND COURTS 228 

CHAPTER 62 
SURVIVAL AND ABATEMENT OF ACTIONS 

16-62-101. Survival of actions — Wrongs to person or property. 

CASE NOTES 



Death of Party. 

Subdivision (a)(1) of this section did not 
provide for the claim of invasion of privacy 
to survive the death of the decedent. Can- 



nady v. St. Vincent Infirmary Med. Ctr., 
2012 Ark. 369, — S.W.3d — (2012). 

Cited: Lucas v. Wilson, 2011 Ark. App. 
584, — S.W.3d — (2011). 



16-62-102. Wrongful death actions — Survival 

CASE NOTES 



Analysis 

Applicability. 

Parties. 

Statute of Limitations. 

Applicability. 

Rejection of the husband's claim that he 
had a curtesy interest in a settlement 
award involving his deceased wife was 
appropriate because the wife never pos- 
sessed a chose in action since there was no 
cause of action for wrongful death created 
in any individual beneficiary under this 
section, the wrongful-death statute. 
Bridges v. Shields, 2011 Ark. 448, — 
S.W.3d — (2011). 

Parties. 

Trial court erred by disregarding a nunc 
pro tunc order entered in the probate 
court appointing appellants as co-special 
administrators, effective before the 
wrongful death action was filed, as: (1) the 
nunc pro tunc order gave appellants 
standing under subsection (b) of this sec- 



tion to bring the wrongful death action; (2) 
the statute of limitations under § 16-114- 
203(a) did not bar the wrongful death 
action; (3) by choosing to ignore the nunc 
pro tunc order, the trial court effectively 
invalidated the order, which was beyond 
its jurisdiction to do; and (4) the case did 
not involve the relation back doctrine un- 
der Ark. R. Civ. P. 15. Smith v. Rebsamen 
Med. Ctr., Inc., 2011 Ark. App. 722, — 
S.W.3d — (2011). 

Statute of Limitations. 

Filing of a workers' compensation claim 
did not toll the statute of limitations on a 
wrongful death suit; the Arkansas Work- 
ers' Compensation Commission's primary 
jurisdiction to determine workers' com- 
pensation coverage did not prevent the 
tort action from being filed while the 
workers' compensation claim was pend- 
ing. Frisby v. Milbank Mfg. Co., 688 F.3d 
540 (8th Cir. 2012). 

Cited: Lucas v. Wilson, 2011 Ark. App. 
584, — S.W.3d — (2011). 



229 TRIAL AND VERDICT 16-64-115 

CHAPTER 63 
PLEADINGS AND PRETRIAL PROCEEDINGS 

Subchapter 4 — Continuance or Dismissal 

16-63-402. Continuance for absence of evidence or witness. 

CASE NOTES 



Reviewability. 

Revocation of defendant's suspended 
imposition of sentence was appropriate 
because he never argued to the trial court 
that the state had not filed an affidavit in 
accordance with subsection (a) of this sec- 



tion. In the absence of an objection at 
trial, any argument concerning the failure 
to submit such an affidavit would not be 
addressed on appeal. Dotson v. State, 2011 
Ark. App. 731, — S.W.3d — (2011). 



Subchapter 5 — Citizen Participation in Government Act 



16-63-501. Title. 



RESEARCH REFERENCES 



ALR. Application of Anti-SLAPP ("Stra- ment, Land Use, and Zoning Disputes. 64 
tegic Lawsuit Against Public Participa- A.L.R.6th 365. 
tion") Statutes to Real Estate Develop- 

16-63-504. Immunity from suit. 

RESEARCH REFERENCES 

ALR. Application of Anti-SLAPP ("Stra- ment, Land Use, and Zoning Disputes. 64 
tegic Lawsuit Against Public Participa- A.L.R.6th 365. 
tion") Statutes to Real Estate Develop- 

CHAPTER 64 
TRIAL AND VERDICT 

16-64-115. Jury instructions — Further instruction during de- 
liberations. 

CASE NOTES 



Analysis 

Deposition Testimony. 
No Violation Found. 

Deposition Testimony. 

In a medical malpractice action, a trial 
court did not err in allowing videotape 
deposition testimony by plaintiffs treat- 



ing physician to be replayed to the jury 
because no transcript of the deposition 
was available and the trial court complied 
with the requirements of this section by 
replaying the physician's entire testi- 
mony, including both direct and cross- 
examination, in open court with all par- 
ties present. Padilla v. Archer, 2011 Ark. 
App. 746, — S.W.3d — (2011). 



16-64-116 



PRACTICE, PROCEDURE, AND COURTS 



230 



No Violation Found. 

Trial court did not err in denying an 
administratrix's motion for a new trial 
after a jury awarded judgment to a home 
health care company and its employees in 
an action for negligence because a bailiff 
did not violate the statute by answering a 



jury question; the bailiffs stated in an 
affidavit that after the bailiff informed the 
attorneys that the jury had a question, the 
jurors told the bailiff they had figured it 
out. Houchins v. Home Care Professionals 
of Ark., Inc., 2012 Ark. App. 553, — S.W.3d 
— (2012). 



16-64-116. Conduct of jury after submission of case. 

CASE NOTES 



No Violation Found. 

Trial court did not err in denying an 
administratrix's motion for a new trial 
after a jury awarded judgment to a home 
health care company and its employees in 
an action for negligence because a bailiff 
did not violate the statute by answering a 



jury question; the bailiffs stated in an 
affidavit that after the bailiff informed the 
attorneys that the jury had a question, the 
jurors told the bailiff they had figured it 
out. Houchins v. Home Care Professionals 
of Ark., Inc., 2012 Ark. App. 553, — S.W.3d 
— (2012). 



16-64-122. Comparative fault. 

CASE NOTES 



Analysis 

Jury Instructions. 
Pleading. 

Jury Instructions. 

Trial court properly instructed the jury 
on comparative fault as the broad lan- 
guage set forth in this section contra- 
dicted plaintiffs claim that fault should 
not be compared in enhanced-injury cases; 
under Arkansas law, comparative fault 
was applicable to all actions for personal 
injury or wrongful death. Bishop v. Tariq, 



Inc., 2011 Ark. App. 
(2011). 



445, 



S.W.3d — 



Pleading. 

As a consequence of failing to plead 
contributory negligence as an affirmative 
defense, defendant retailer did not have 
available the full benefit of a contributory 
negligence defense under subsection (b) of 
this section, but the failure did not make 
all evidence relating to plaintiffs conduct 
excludable under Fed. R. Evid. 401 and 
403. Dupont v. Fred's Stores of Tenn., Inc., 
652 F.3d 878 (8th Cir. 2011). 



231 



JUDGMENTS GENERALLY 

CHAPTER 65 
JUDGMENTS GENERALLY 



16-65-501 



Subchapter 1 — General Provisions 

16-65-117. Judgment as lien on land. 

CASE NOTES 



Analysis 

Homestead. 
Judgments. 

Homestead. 

Through 11 U.S.C.S. § 544(a)(1), the 
bankruptcy provided Chapter 12 debtors 
in possession with judgment lien rights 
under subdivision (a)(1) of this section, 
but the property was subject to an Ark. 
Const. Art. 9, § 3, homestead to which 
such a lien could not attach, thus, avoid- 
ance of creditor bank's mortgage was not 



available under § 544(a)(1). Caine v. First 
State Bank (In re Caine), 462 B.R. 688 
(Bankr. W.D. Ark. 2011). 

Judgments. 

Directed verdict was appropriate, be- 
cause the judgment debtors did not own 
the property, and as a matter of law, the 
company's judgment lien did not attach to 
the property that was now owned by the 
current owner; there was no evidence that 
the judgment debtors owned the property. 
Buckeye Ret. Co., LLC v. Walter, 2012 
Ark. App. 257, — S.W.3d — (2012). 



16-65-121. Judgments, etc., effective from date rendered. 

CASE NOTES 



Construction. 

Court did not err in finding that appel- 
lees timely revived the 1999 decree where 
they filed their writ of scire facias on May 
13, 2009, within ten years from May 25, 
1999, the effective date of the decree, 
because the Arkansas Supreme Court had 



previously found Ark. R. Civ. P. 58 effec- 
tively superseded this section, and there 
was no reason not to extend this finding, 
which involved this more generally appli- 
cable section, to § 16-65-501. Middleton v. 
Lockhart, 2012 Ark. 131, — S.W.3d — 
(2012). 



Subchapter 5 — Survival and Revival 



16-65-501. Scire facias. 



CASE NOTES 



Revival. 

Court did not err in finding that appel- 
lees timely revived the 1999 decree where 
they filed their writ of scire facias on May 
13, 2009, within ten years from May 25, 
1999, the effective date of the decree, 
because the Arkansas Supreme Court had 
previously found Ark. R. Civ. P. 58 effec- 
tively superseded § 16-65-121, and there 
was no reason not to extend this finding, 



which involved the more generally appli- 
cable § 16-65-121, to this section. Middle- 
ton v. Lockhart, 2012 Ark. 131, — S.W.3d 
— (2012). 

Court did not err in concluding that the 
1999 decree could be revived by a writ of 
scire facias under this section, because the 
1999 decree was entitled to the same 
footing as a judgment, and chancery 
courts had the statutory power to issue 



16-66-101 PRACTICE, PROCEDURE, AND COURTS 232 

writs of execution to enforce their decrees. 
Middleton v. Lockhart, 2012 Ark. 131, — 
S.W.3d — (2012). 

CHAPTER 66 
EXECUTION OF JUDGMENTS 

Subchapter 1 — General Provisions 

16-66-101. Execution issued on final judgment order. 

CASE NOTES 

Cited: Tiner v. Tiner, 2012 Ark. App. 
483, — S.W.3d — (2012). 

Subchapter 2 — Property Subject to Execution — Exemptions 

16-66-211. Claiming exemptions — Schedule of property — Stay 
of execution — Levy on remainder of property — 
Appeal. 

CASE NOTES 

Contempt. the court clerk within forty-five days from 

There was no err in holding appellants the date of the judgments, and the court 

in contempt for failing to comply with this was not dependent upon affidavits or veri- 

section, because the court was not depen- fied petitions since all the court had to do 

dent upon affidavits or verified petitions, was examine the court clerk's files and see 

appellants were served with a copy of the t h a t the schedules had not been filed 

contempt petition, appellants were repre- w i t hin forty-five days to establish a prima 

sented by counsel and had an opportunity facie case f contempt. P. J. Transp., Inc. v. 

to defend at the hearing on the petition for First Serv Bank> 2012 ^ A 292 _ 

contempt; the court had ordered appel- qwq^ (2012) 

lants to file their schedules of assets with 

16-66-218. Exemptions from execution under federal bank- 
ruptcy proceedings. 

CASE NOTES 

Constitutionality. Constitution, the statutory exemptions 

Because subdivisions (a)(2) and (4) of are unconstitutional. In re Kelley, 455 

this section provide for exemptions in ex- B.R. 710 (Bankr. E.D. Ark. 2011). 
cess of the amount set by the Arkansas 



233 



EXECUTION OF JUDGMENTS 



16-66-602 



16-66-220. Pension and profit-sharing plans. 

CASE NOTES 



Interpretation. 

Subdivision (a)(1) of this section was not 
unconstitutional, because the IRA exemp- 
tion was not an absolute exemption of all 
personal property, and as such, did not 
offend Ark. Const. Art. 9, § 2; as long as 
the exemption at issue was not an abso- 



lute exemption of all personal property, 
but instead related only to exempting cer- 
tain funds from general garnishment stat- 
utes, then the exemption did not violate 
Ark. Const. Art. 9, § 2. Clinical Study 
Ctrs., Inc. v. Boellner, 2012 Ark. 266, — 
S.W.3d — (2012). 



16-66-221. Schedule of property — Filing. 

CASE NOTES 



Application and Construction. 

This section did not apply to the judg- 
ment debtors, because the debtors had not 
been residents of Arkansas for more than 
seven years, and subsection (c) merely 
required the court to include the asset- 



schedule provision in its order if a resi- 
dent defendant was required to prepare 
such a schedule in accordance with sub- 
section (a). Hauser v. Sims, 2012 Ark. App. 
295, — S.W.3d — (2012). 



Subchapter 6 — Uniform Enforcement of Foreign Judgments Act 



16-66-601. Definition. 



CASE NOTES 



Authentication. 

Petition to revive a foreign judgment 
was properly granted because it was au- 
thenticated under Ark. R. Civ. P. 44 where 
it was signed by a clerk for a United 
States Bankruptcy Court; the Arkansas 
Supreme Court's rule-making authority 



over procedural matters was exclusive. It 
was argued that the proper authentica- 
tion process was not followed when a 
certified copy of the judgment was at- 
tached to an application. Bird v. Shaffer, 
2012 Ark. App. 464, — S.W.3d — (2012). 



16-66-602. Filing and status of foreign judgments. 

CASE NOTES 



Application. 

Petition to revive a foreign judgment 
was properly granted because it was au- 
thenticated under Ark. R. Civ. P. 44 where 
it was signed by a clerk for a United 
States Bankruptcy Court; the Arkansas 
Supreme Court's rule-making authority 



over procedural matters was exclusive. It 
was argued that the proper authentica- 
tion process was not followed when a 
certified copy of the judgment was at- 
tached to an application. Bird v. Shaffer, 
2012 Ark. App. 464, — S.W.3d — (2012). 



16-68-607 



PRACTICE, PROCEDURE, AND COURTS 

CHAPTER 68 
COSTS AND BONDS 



234 



Subchapter 6 — Incarcerated Persons 
16-68-607. Multiple lawsuits. 

CASE NOTES 



Application. 

Petitioner failed to show that the circuit 
court erred when it determined his habeas 
petition was a civil action that constituted 
one strike for purposes of this section, 
because § 16-106-202 had no application 
to this section, and this section did apply, 



when the circuit court correctly found that 
the petition for writ of habeas corpus 
failed to state a claim upon which relief 
could be granted and the petition did 
constitute a strike for purposes of that 
section. McArty v. Hobbs, 2012 Ark. 257, 
— S.W.3d — (2012). 



SUBTITLE 6. CRIMINAL PROCEDURE GENERALLY 

CHAPTER 81 
ARREST 

Subchapter 2 — Stop and Search 



16-81-203. Grounds to reasonably suspect. 

CASE NOTES 



Analysis 

Informant's Information. 
Reasonableness. 
"Reasonably Suspect." 

Informant's Information. 

Officer had reasonable suspicion to stop 
and detain defendant based on a reliable 
confidential informant's information that 
he was going to deliver methamphet- 
amine at a specified convenience store and 
defendant's arrival at the store, followed 
by the informant's call to defendant that 
he was at the wrong store and defendant's 
then leaving the first store and driving 
toward the other store. Owens v. Arkan- 
sas, 2011 Ark. App. 763, — S.W.3d — 
(2011). 

Officer had reasonable suspicion to stop 
defendant and investigate drug-related 
criminal activity because a reliable known 
informant provided information about a 
delivery of methamphet amine. The fact 



that defendant arrived in a black car 
rather than a white car of the same make 
as described did not undermine reason- 
able suspicion. James v. State, 2012 Ark. 
App. 118, — S.W.3d — (2012). 

Reasonableness. 

Trial court did not err in denying defen- 
dant's motion to suppress evidence seized 
as a result of a detention and a canine 
sniff of defendant's truck because an offi- 
cer had reasonable suspicion to detain 
defendant under subdivisions (1), (3), (6) 
and (9) of this section; after stopping de- 
fendant for driving a vehicle with a bro- 
ken tail light, the officer noted that defen- 
dant refused to make eye contact, 
exhibited increased nervousness, and was 
known to have had prior drug problems. 
Johnson v. State, 2012 Ark. App. 167, — 
S.W.3d — (2012). 

"Reasonably Suspect." 

Circuit court's ruling denying defen- 
dant's motion to suppress evidence recov- 



235 



PRETRIAL PROCEEDINGS 



16-85-407 



ered in a search of her truck after she was 
stopped for a traffic violation was not 
clearly against the preponderance of the 
evidence. Factors that combined to give a 
state trooper a reasonable suspicion that 
defendant was engaged in criminal activ- 
ity were: (1) one month earlier he had 
stopped the same truck and arrested de- 
fendant's passenger for drunk driving and 



possession of marijuana; (2) during a 
criminal history check, the trooper discov- 
ered defendant had been previously ar- 
rested; (3) the trooper had information 
from a local police department that defen- 
dant was suspected of drug dealing; (4) 
defendant was nervous; and (5) it was late 
at night. Menne v. State, 2012 Ark. 37, — 
S.W.3d — (2012). 



CHAPTER 85 
PRETRIAL PROCEEDINGS 

Subchapter 4 — Indictment Generally 

16-85-407. Amendment of indictment and filing of bill of par- 
ticulars. 

CASE NOTES 



Analysis 

Change in Nature or Degree. 
Validity of Amendment. 

Change in Nature or Degree. 

Denial of a continuance to a defendant 
did not violate due process; although the 
information was amended the day before 
trial from a charge of rape of someone less 
than 14 years old by forcible compulsion to 
rape by forcible compulsion in violation of 
§ 5- 14- 103(a)(1), the nature of the crime 
charged did not change, pursuant to sub- 
section (b) of this section. Green v. State, 
2012 Ark. 19, — S.W.3d — (2012). 

Trial court did not erroneously allow an 
information charging rape by forcible 
compulsion and terroristic threatening to 
be amended on the first day of trial to add 
physical helplessness as an alternative 
means of committing rape because the 
amendment addressed only the manner 
by which the rape was committed and did 
not change the nature or degree of the 
rape charge, and defendant could not 
show that the amendment resulted in 



prejudice through unfair surprise because 
he failed to move for a continuance and 
failed to claim surprise after he was put 
on notice that the State planned to amend 
the information. Harris v. State, 2012 Ark. 
App. 651, — S.W.3d — , 2012 Ark. App. 
LEXIS 765 (Nov. 14, 2012). 

Validity of Amendment. 

Trial court committed no error in allow- 
ing the state to orally amend the informa- 
tion to include the contra pacem clauses 
as required by Ark. Const. Art. 7, § 49 
because the amendment conformed to the 
requirements of this section; the amend- 
ment adding the contra pacem clauses did 
not change the nature or degree of the 
crimes charged, nor did it compromise 
defendant's ability to make a defense, the 
amendment resulted in no prejudice, and 
defendant did not claim surprise or re- 
quest a continuance after the amendment 
was granted. Walker v. State, 2012 Ark. 
App. 61, — S.W.3d — (2012). 

Cited: Hoyle v. State, 2011 Ark. 321, — 
S.W.3d — (2011). 



16-87-213 PRACTICE, PROCEDURE, AND COURTS 

CHAPTER 87 
PUBLIC DEFENDERS 



236 



Subchapter 2 — Arkansas Public Defender Commission 



A.C.R.C. Notes. Acts 2012, No. 255, 
§ 12, provides: "DUTIES OF DEPEN- 
DENCY-NEGLECT APPEALS ATTOR- 
NEY. The Public Defender Commission 
shall utilize Dependency-Neglect Appeals 



Attorneys exclusively to write appeals in 
dependency-neglect cases. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



16-87-213. Certificate of indigency. 



A.C.R.C. Notes. Acts 2012, No. 255, 
§ 9, provides: "FEE GENERATION AND 
SUPPORT — COURTS. Unless specified 
otherwise in Arkansas Code §5-4-303(g) 
and Arkansas Code 16-87-213 the monies 
collected by the courts under the authority 
of §5-4-303(g) and 16-87-213 shall be de- 
posited into the State Treasury to the 
credit of the State Central Services Fund. 

"In the event that the law requires that 
the fees levied under §5-4-303(g) be depos- 



ited into the State Administration of Jus- 
tice Fund, the State Treasurer shall trans- 
fer the amount of the fees collected each 
month under the authority of Arkansas 
Code §5-4-303(g) from the State Adminis- 
tration of Justice Fund to the State Cen- 
tral Services Fund. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



16-87-216. Juvenile Ombudsman Division. 



A.C.R.C. Notes. Acts 2012, No. 218, 
§ 10, provided: "TRANSFER OF FUNDS 
FOR THE JUVENILE OMBUDSMAN 
PROGRAM. The Department of Human 
Services shall provide funding in an 
amount not to exceed $240,000 for the 
fiscal year ending June 30, 2013 for the 
Juvenile Ombudsman Program described 
in ACA 16-87-216. Upon request by the 
Executive Director of the Arkansas Public 



Defender Commission, the Chief Fiscal 
Officer of the State shall transfer an 
amount not to exceed $240,000 for the 
fiscal year ending June 30, 2013 from an 
account designated by the Director of the 
Department of Human Services to the 
State Central Services Fund as a direct 
revenue to fund the Juvenile Ombudsman 
Program." 



CHAPTER 88 
JURISDICTION AND VENUE 

Subchapter 1 — General Provisions 



16-88-104. Presumption of jurisdiction. 

CASE NOTES 



Proof. 

Pursuant to this section, a trial court 
had jurisdiction over defendant's trial for 



theft by receiving because the evidence 
demonstrated that, at the very least, the 
disposal of the stolen property occurred in 



237 



JURISDICTION AND VENUE 



16-88-113 



Arkansas. Johnson v. State, 2012 Ark. Cited: Clark v. State, 2012 Ark. App. 

App. 615, — S.W.3d — , 2012 Ark. App. 496, — S.W.3d — (2012). 
LEXIS 719 (Oct. 31, 2012). 

16-88-105. Territorial jurisdiction of certain courts generally. 
[Effective until January 1, 2012.] 

CASE NOTES 



Venue. 

Ark. R. Crim. P. 21.3 did not preclude a 
prosecution for second-degree sexual as- 
sault because it did not occur in the same 
jurisdiction and venue as other offenses; 
the sexual assault in Sebastian County 
did not arise from the same criminal epi- 
sode as similar offenses charged in Craw- 
ford County, which allegedly occurred 



within a span of four years. Rape was not 
a continuing offense, §16-88-108 did not 
apply because the charged offenses of 
sexual assault was alleged to have been 
committed entirely within Sebastian 
County, and the offenses were not related 
under Rule 21.3. Bean v. State, 2012 Ark. 
App. 643, — S.W.3d — , 2012 Ark. App. 
LEXIS 738 (Nov. 7, 2012). 



16-88-108. Jurisdiction of counties — Offenses generally. 



CASE NOTES 



Offenses in More Than One County. 

Pursuant to subsection (c) of thjis sec- 
tion, a trial court had jurisdiction over 
defendant's trial for theft by receiving 
because the evidence demonstrated that, 
at the very least, the disposal of the stolen 
property occurred in Arkansas. Johnson v. 
State, 2012 Ark. App. 615, — S.W.3d — , 
2012 Ark. App. LEXIS 719 (Oct. 31, 2012). 

Ark. R. Crim. R 21.3 did not preclude a 
prosecution for second-degree sexual as- 
sault because it did not occur in the same 
jurisdiction and venue as other offenses; 



the sexual assault in Sebastian County 
did not arise from the same criminal epi- 
sode as similar offenses charged in Craw- 
ford County, which allegedly occurred 
within a span of four years. Rape was not 
a continuing offense, this section did not 
apply because the charged offenses of 
sexual assault was alleged to have been 
committed entirely within Sebastian 
County, and the offenses were not related 
under Rule 21.3. Bean v. State, 2012 Ark. 
App. 643, — S.W.3d — , 2012 Ark. App. 
LEXIS 738 (Nov. 7, 2012). 



16-88-113. Jurisdiction of counties — Stolen property. 

CASE NOTES 



Proof. 

Pursuant to subsection (A) of thsi sec- 
tion, a trial court had jurisdiction over 
defendant's trial for theft by receiving 
because the evidence demonstrated that, 



at the very least, the disposal of the stolen 
property occurred in Arkansas. Johnson v. 
State, 2012 Ark. App. 615, — S.W.3d — , 
2012 Ark. App. LEXIS 719 (Oct. 31, 2012). 



16-89-111 



PRACTICE, PROCEDURE, AND COURTS 

CHAPTER 89 
TRIAL AND VERDICT 



238 



16-89-111. Evidence generally. 

CASE NOTES 



Analysis 

Accomplice Testimony. 
Corpus Delicti Rule. 

Accomplice Testimony. 

Independent evidence corroborated de- 
fendant's passenger's testimony that 
drugs in a blue glove in her pants be- 
longed to defendant, including a letter 
defendant wrote to the passenger from jail 
asking her to change her statement and to 
implicate someone else in the crime and 
the passenger's statements to officers that 
she had something concealed on her body. 
Owens v. Arkansas, 2011 Ark. App. 763, — 
S.W.3d — (2011). 

Defendant's conviction for second-de- 
gree forgery was proper considering ac- 
complice testimony along with the other 
evidence, under subdivision (e)(1)(A) of 
this section. Although the evidence was 
circumstantial given that it was the ac- 
complice, rather than defendant, who 
cashed the forged check, circumstantial 
evidence could provide the basis to sup- 

16-89-118. Conduct of jury. 



port the conviction. Benton v. State, 2012 
Ark. App. 71, — S.W.3d — (2012). 

There was sufficient evidence tending to 
connect defendant to an aggravated rob- 
bery and thus to corroborate accomplice 
testimony because surveillance video es- 
tablished the commission of the crime and 
an officer testified that defendant 
matched the description of a robber in the 
video based on his height and that the 
officer confirmed the truth of identifying 
information from a non-accomplice. Smith 
v. State, 2012 Ark. App. 534, — S.W.3d — 
(2012). 

Corpus Delicti Rule. 

Substantial evidence supported defen- 
dant's convictions for capital murder, resi- 
dential burglary, and theft of property 
because the state offered evidence to cor- 
roborate defendant's confession under 
subsection (d) of this section; the state 
presented evidence that the murder vic- 
tim died at the hands of another, that a 
second victim's home was burglarized, 
and that guns were removed from the 
second victim's home. Meadows v. State, 
2012 Ark. 57, — S.W.3d — (2012). 



CASE NOTES 



Admonition. 

Court did not abuse its discretion by 
refusing to poll jurors about an article 
published in the local newspaper that 
morning because they had promised to 
follow the judge's admonishment not to 
read anything in the morning paper, 
watch anything on television, or listen to 



anything on the radio concerning the case. 
Defense counsel concurred that the court 
had properly instructed the jury under 
this section, and the judge announced that 
he took the jurors at their word and would 
not poll them. Fields v. State, 2012 Ark. 
App. 269, — S.W.3d — (2012). 



239 JUDGMENT AND SENTENCE GENERALLY 16-90-107 

16-89-122. Dismissal of indictment. 

CASE NOTES 

Nolle Prosequi. would have simply refiled the charges 

Denial of appellant's, an inmate's, peti- since the state's dismissal of a case by 

tion for postconviction relief was proper nolle prosequi did not bar a subsequent 

because he failed to prove that he received prosecution under this section; Moreover, 

the ineffective assistance of counsel. In trial counsel appeared to have made a 

part, although the inmate might have we ll-reasoned tactical decision not to ob- 

successfully quashed the amended infor- ject to the amen dment. Hoyle v. State, 

mation, he was not prejudiced by any 2 011 Ark. 321, — S.W.3d — (2011). 
resulting error, because the prosecutor 

16-89-125. Deliberation of jury. 

RESEARCH REFERENCES 

ALR. Propriety of Audio or Video Play- 
back of Testimony or Statement to Jury. 
65 A.L.R.6th 537. 

CASE NOTES 

Cited: Padilla v. Archer, 2011 Ark. App. 
746, — S.W.3d — (2011). 

CHAPTER 90 
JUDGMENT AND SENTENCE GENERALLY 

subchapter. 
9. Expungement and Sealing of Criminal Records. 

Subchapter 1 — General Provisions 

16-90-107. Fixing of punishment generally. 

CASE NOTES 

Motion to Reduce. passion and prejudice is not persuasive; 

Denial of appellant's, an inmate's, peti- considering the court's ability to sua 

tion for postconviction relief was proper sponte reduce the sentence, the trial court 

because he failed to prove that he received did not clearly err in finding that a motion 

the ineffective assistance of counsel. In to reduce the sentence under subsection 

part, the inmate's argument that the ju- (e) of this section would have been denied. 

ry's verdict imposing the maximum sen- Hoyle v. State, 2011 Ark. 321, — S.W.3d — 

tences to run consecutively was a result of (2011). 



16-90-111 PRACTICE, PROCEDURE, AND COURTS 

16-90-111. Correction or reduction of sentence. 

CASE NOTES 



240 



Considered as a Petition for Postcon- 
viction Relief. 

Inmate's appeal of the denial of the 
inmate's petition to correct an illegal sen- 
tence, pursuant to this section, was dis- 
missed because (1) Ark. R. Crim. P. 37.2(b) 
said all postconviction relief grounds cog- 
nizable under Ark. R. Crim. P. 37.1 had to 
be raised in a Rule 37.1 petition filed 
within 90 days of the date of judgment 
when a defendant pled guilty, even though 
this section let a trial court correct an 
illegal sentence at any time, as the statute 



was superseded to the extent the statute 
conflicted with the Rule's time limits, (2) 
the petition was filed over six years after 
judgment was entered, (3) the time limits 
in Ark. R. Crim. P. 37.2 were jurisdic- 
tional, denying a trial court jurisdiction if 
the time limits were not met, and, on 
appeal, a reviewing court, and (4) the 
inmate's sentence was within the pre- 
scribed statutory ranges in §§ 5-4- 
501(b)(2)(A) and 5-4-401(b)(l). Redus v. 
State, 2013 Ark. 9, — S.W.3d — , 2013 Ark. 
LEXIS 15 (Jan. 17, 2013). 



16-90-120. Felony with firearm. 

CASE NOTES 



Analysis 

Appeal. 
Sentencing. 

Appeal. 

In a murder case, the trial court did not 
err in allowing the state to amend the 
information on the morning of trial to 
include a felony-firearm enhancement. 
Because the charge defendant was tried 
for was contained in the original informa- 
tion, the reviewing court failed to see how 
defendant was unfairly surprised or oth- 
erwise prejudiced by the amended infor- 



mation. Plessy v. State, 2012 Ark. App. 74, 
— S.W.3d — (2012). 

Sentencing. 

Where defendant was convicted of mul- 
tiple offenses and sentenced to 240 
months for committing a terroristic act 
and 192 months for domestic battery, the 
enhancement of his sentence on both 
charges by 144 months pursuant to this 
section did not result in his sentence being 
enhanced twice for using a deadly weapon 
because the use of a firearm was not an 
element the prosecution had to prove to 
obtain his convictions. King v. State, 2012 
Ark. App. 94, — S.W.3d — (2012). 



16-90-121. Second or subsequent felony with firearm. 

CASE NOTES 



Good Time Credits. 

Because § 12-29-201, changing how 
meritorious good-time credit was applied, 
did not impliedly repeal the language in 
this section (the deadly-weapon enhance- 
ment statute applicable at the time of an 



inmate's sentence), the inmate's 30-year 
sentence for first-degree murder was sub- 
ject to reduction by meritorious good-time 
credit at the conclusion of the first 10 
years of the sentence. Hobbs v. Baird, 2011 
Ark. 261, — S.W.3d — (2011). 



241 JUDGMENT AND SENTENCE GENERALLY 16-90-201 

16-90-122. Post-conviction release of nonviolent offenders. 

CASE NOTES 



Applicability. 

Because defendant was not "in custody" 
at the time defendant violated the condi- 
tions of defendant's release on bond under 
subdivision (a)(2) of this section, the cir- 



cuit court erred in denying defendant's 
motion for directed verdict on defendant's 
conviction for second-degree escape under 
§ 5-54-lll(a)(2). Magness v. State, 2012 
Ark. 16, — S.W.3d — (2012). 



Subchapter 2 — Multiple Convictions 

16-90-201. Punishment for second or subsequent convictions 
generally. 

CASE NOTES 



Analysis 

Construction. 
Procedure Generally. 

Construction. 

Circuit court erred in sentencing defen- 
dant under this section because the stat- 
ute was repealed by implication with the 
enactment of § 5-4-501, and the effect of 
sentencing defendant under this section 
was prejudicial since there was the possi- 
bility that the jury would have returned a 
sentence less than the minimum set forth 
in this section; because sentencing had to 
be determined by the law in effect at the 
time of the commission of a crime, defen- 
dant was entitled to a jury instruction in 
accordance with the Criminal Code's ha- 
bitual-offender statute, § 5-4-501. Glaze 
v. State, 2011 Ark. 464, — S.W.3d — 
(2011). 

General Assembly clearly took up the 
subject matter of the enhanced sentencing 
of habitual offenders anew in the more 
current statute, § 5-4-501, and the con- 
flict between this section and § 5-4-501 is 
irreconcilable, resulting in a repeal by 
implication of this section; a plain reading 
of §§ 5-4-501 and this section makes clear 
that § 5-4-501 is the more comprehensive 
statute, covering the same subject matter 
as this section as well as including addi- 
tional provisions to provide for the sen- 
tencing of habitual offenders who are con- 



victed of serious and violent felonies, and 
it is further evident that the two statutes 
cannot be read together harmoniously, as 
the two statutes cannot be read together 
harmoniously, as the sentencing ranges 
prescribed by each statute conflict. Glaze 
v. State, 2011 Ark. 464, — S.W.3d — 
(2011). 

Procedure Generally. 

Circuit court did not err in sentencing 
defendant as a habitual offender because 
there was no error in the form of the 
amended felony information; the amended 
felony information incorporated by refer- 
ence the charges included in the original 
information and quoted the habitual-of- 
fender statute, and that was sufficient to 
alert defendant to the fact that he could be 
sentenced as a habitual offender and that 
his prior convictions could be considered 
in assessing an enhanced sentence. Glaze 
v. State, 2011 Ark. 464, — S.W.3d — 
(2011). 

There was no error in the timing of the 
amendment of the felony information be- 
cause the amendment did not change the 
nature of the crime charged, and there 
was no basis for concluding that defen- 
dant was unfairly surprised by the state's 
amended felony information; prior to the 
filing of the amended felony information, 
defendant received a certified copy of the 
judgment and commitment order convict- 
ing him of three prior felonies. Glaze v. 
State, 2011 Ark. 464, — S.W.3d — (2011). 



16-90-601 PRACTICE, PROCEDURE, AND COURTS 

Subchapter 6 — Expungement of Record 



242 



16-90-601. Minor felony offenders subsequently pardoned for 
offense. 

RESEARCH REFERENCES 



ALR. Judicial Expunction of Criminal 
Record of Convicted Adult Under Statute 
— General Principles, and Expunction of 
Criminal Records Under Statutes Provid- 
ing for Such Relief Where Criminal Pro- 
ceeding Is Terminated in Favor of Defen- 
dant, upon Completion of Probation, upon 
Suspended Sentence, and Where Ex- 
pungement Relief Predicated upon Type, 
and Number, of Offenses. 69 A.L.R.6th 1. 

Judicial Expunction of Criminal Record 



of Convicted Adult Under Statute-Ex- 
punction Under Statutes Addressing 
"First Offenders" and "Innocent Persons," 
Where Conviction Was for Minor Drug or 
Other Offense, Where Indictment Has Not 
Been Presented Against Accused or Ac- 
cused Has been Released from Custody, 
and Where Court Considered Impact of 
Nolle Prosequi, Partial Dismissal, Pardon, 
Rehabilitation, and Lesser-Included Of- 
fenses. 70 A.L.R.6th 1. 



16-90-602. Minor nonviolent felony offenders — Petition. 



RESEARCH REFERENCES 



ALR. Judicial Expunction of Criminal 
Record of Convicted Adult Under Statute 
— General Principles, and Expunction of 
Criminal Records Under Statutes Provid- 
ing for Such Relief Where Criminal Pro- 
ceeding Is Terminated in Favor of Defen- 
dant, upon Completion of Probation, upon 
Suspended Sentence, and Where Ex- 
pungement Relief Predicated upon Type, 
and Number, of Offenses. 69 A.L.R.6th 1. 

Judicial Expunction of Criminal Record 



of Convicted Adult Under Statute-Ex- 
punction Under Statutes Addressing 
"First Offenders" and "Innocent Persons," 
Where Conviction Was for Minor Drug or 
Other Offense, Where Indictment Has Not 
Been Presented Against Accused or Ac- 
cused Has been Released from Custody, 
and Where Court Considered Impact of 
Nolle Prosequi, Partial Dismissal, Pardon, 
Rehabilitation, and Lesser-Included Of- 
fenses. 70 A.L.R.6th 1. 



16-90-603. Minor felony offenders — Expungement of record. 

RESEARCH REFERENCES 



ALR. Judicial Expunction of Criminal 
Record of Convicted Adult Under Statute 
— General Principles, and Expunction of 
Criminal Records Under Statutes Provid- 
ing for Such Relief Where Criminal Pro- 
ceeding Is Terminated in Favor of Defen- 
dant, upon Completion of Probation, upon 
Suspended Sentence, and Where Ex- 
pungement Relief Predicated upon Type, 
and Number, of Offenses. 69 A.L.R.6th 1. 

Judicial Expunction of Criminal Record 



of Convicted Adult Under Statute-Ex- 
punction Under Statutes Addressing 
"First Offenders" and "Innocent Persons," 
Where Conviction Was for Minor Drug or 
Other Offense, Where Indictment Has Not 
Been Presented Against Accused or Ac- 
cused Has been Released from Custody, 
and Where Court Considered Impact of 
Nolle Prosequi, Partial Dismissal, Pardon, 
Rehabilitation, and Lesser-Included Of- 
fenses. 70 A.L.R.6th 1. 



243 



JUDGMENT AND SENTENCE GENERALLY 16-90-902 

Subchapter 7 — Crime Victims Reparations 



16-90-717. Crime Victims Reparations Revolving Fund. 



A.C.R.C. Notes. Acts 2012, No. 281, 
§ 61, provided: "YEARLY FUND TRANS- 
FERS. On July 1, 2010 and each July 1, 
thereafter, if the fund balance of the 
Crime Victims Reparation Revolving 
Fund falls below one million dollars 
($1,000,000), the Chief Fiscal Officer of 
the State may transfer on his or her books 
and those of the State Treasurer and the 
Auditor of the State a sum not to exceed 
one million dollars ($1,000,000) or so 
much thereof as is available from fund 



balances that exceed seven million dollars 
($7,000,000) as determined by the Chief 
Fiscal Officer of the State, from the State 
Administration of Justice Fund to the 
Crime Victims Reparations Revolving 
Fund to provide funds for personal ser- 
vices, operating expenses and claims for 
the Office of the Attorney General — 
Crime Victims Reparations Program. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 9 — Expungement and Sealing of Criminal Records 



SECTION. 

16-90-904. Procedure for sealing of re- 
cords. 



16-90-901. Definition. 



RESEARCH REFERENCES 



ALR. Judicial Expunction of Criminal 
Record of Convicted Adult in Absence of 
Authorizing Statute. 68 A.L.R.6th 1. 

Judicial Expunction of Criminal Record 
of Convicted Adult Under Statute — Gen- 
eral Principles, and Expunction of Crimi- 
nal Records Under Statutes Providing for 
Such Relief Where Criminal Proceeding Is 
Terminated in Favor of Defendant, upon 
Completion of Probation, upon Suspended 
Sentence, and Where Expungement Relief 
Predicated upon Type, and Number, of 
Offenses. 69 A.L.R.6th 1. 



Judicial Expunction of Criminal Record 
of Convicted Adult Under Statute-Ex- 
punction Under Statutes Addressing 
"First Offenders" and "Innocent Persons," 
Where Conviction Was for Minor Drug or 
Other Offense, Where Indictment Has Not 
Been Presented Against Accused or Ac- 
cused Has been Released from Custody, 
and Where Court Considered Impact of 
Nolle Prosequi, Partial Dismissal, Pardon, 
Rehabilitation, and Lesser-Included Of- 
fenses. 70 A.L.R.6th 1. 



16-90-902. Effect of expungement. 

CASE NOTES 



Analysis 

In General. 
Attorney Discipline. 

In General. 

Trial court did not err by admitting 
defendant's prior conviction for felony pos- 
session of drug paraphernalia into evi- 
dence as proof on a charge of possession of 






a firearm by a felon (FIP) because § 5-73- 
103(a)(1) specifically provided that defen- 
dant's expunged felony conviction could be 
used as proof on his FIP charge; although 
still uncodified, 1995 Ark. Acts. 595, § 1 
indicates legislative intent for an ex- 
punged felony conviction to remain a con- 
viction for the purposes of possession of a 
firearm by a felon. Smith v. State, 2011 
Ark. App. 539, — S.W3d — (2011). 



16-90-904 PRACTICE, PROCEDURE, AND COURTS 244 

Attorney Discipline. could not be bound by an expungement 

Circuit court's order to dismiss the at- order made pursuant to a legislative en- 

torney's conviction and to seal the record actment when engaged in its constitu- 

of the criminal proceeding was not bind- tional mandate to regulate and discipline 

ing on the Arkansas Supreme Court for attorneys at law. Ligon v. Davis, 2012 Ark. 

purposes of the disciplinary proceeding 440, — S.W.3d — , 2012 Ark. LEXIS 470 

against the attorney because the court (Nov. 29, 2012). 

16-90-904. Procedure for sealing of records. 

(a)(1) An individual who is eligible to have an offense expunged may 
file a uniform petition to seal records, as described in § 16-90-905, in 
the circuit court or district court in the county where the crime was 
committed and in which the person was convicted for the offense he or 
she is now petitioning to have expunged. 

(2)(A) Unless the court is presented with and finds that there is clear 
and convincing evidence that a misdemeanor conviction should not be 
expunged under this subchapter, the court shall expunge the misde- 
meanor conviction for a person after the person files a petition as 
described in this section, except for the following offenses: 

(i) Negligent homicide, § 5-10-105, if it was a Class A misde- 
meanor; 

(ii) Battery in the third degree, § 5-13-203; 

(hi) Indecent exposure, § 5-14-112; 

(iv) Public sexual indecency, § 5-14-111; 

(v) Sexual assault in the fourth degree, § 5-14-127; 

(vi) Domestic battering in the third degree, § 5-26-305; or 

(vii) Driving while intoxicated, § 5-65-103. 

(B) An offense listed in subdivisions (a)(2)(A)(i)-(vii) of this section: 

(i) May be expunged after a period of five (5) years has elapsed 
since the completion of the person's sentence for that conviction; and 

(ii) Shall be expunged after the period of time required in subdi- 
vision (a)(2)(B)(i) of this section unless the court is presented with 
and finds that there is clear and convincing evidence that the 
misdemeanor conviction should not be expunged under this subchap- 
ter. 

(b)(1)(A) A copy of the uniform petition for sealing of the record shall 
be served upon the prosecuting authority for the county in which the 
petition is filed, the arresting agency, and any city court or district 
court where the individual appeared before the transfer of the case to 
circuit court. 

(B) It shall not be necessary to make any agency a party to the 
action. 

(2)(A) Any person desiring to oppose the sealing of the record shall 
file a notice of opposition with the court setting forth reasons within 
thirty (30) days after receipt of the uniform petition or after the 
uniform petition is filed, whichever is the later date. 

(B) If no opposition is filed, the court may grant the petition. 

(C) If notice of opposition is filed, the court shall set the matter for 
a hearing. 



245 JUDGMENT AND SENTENCE GENERALLY 16-90-905 

(c) If the court determines that the record should be sealed, the 
uniform order, as described in § 16-90-905, shall be entered and filed 
with the circuit clerk. 

(d) The circuit clerk shall certify copies of the uniform order to the 
prosecuting attorney who filed the underlying charges, the arresting 
agency, any city court or district court where the individual appeared 
before the transfer of the case to circuit court, the Administrative Office 
of the Courts, and the Arkansas Crime Information Center. 

(e)(1) The circuit clerk and the clerk of any city court or district court 
where the individual appeared before the transfer of the case to circuit 
court shall remove all petitions, orders, docket sheets, and documents 
relating to the case, place them in a file, and sequester them in a 
separate and confidential holding area within the clerk's office. 

(2)(A) A docket sheet shall be prepared to replace the sealed docket 

sheet. 
(B) The replacement docket sheet shall contain the docket number, 

a statement that the case has been sealed, and the date that the order 

to seal the record was issued. 

(3) All indices to the file of the individual with a sealed record shall 
be maintained in a manner to prevent general access to the identifica- 
tion of the individual. 

(f) Upon notification of an order to seal records, all circuit clerks, city 
clerks, district clerks, arresting agencies, and other criminal justice 
agencies maintaining such conviction records in a computer-generated 
database shall either segregate the entire record into a separate file or 
ensure by other electronic means that the sealed record shall not be 
available for general access unless otherwise authorized by law. 

History. Acts 1995, No. 998, § 7; 2009, ing set out to reflect a correction to a 
No. 477, § 1; 2011, No. 626, § 3. reference in (a)(2)(B). 

Publisher's Notes. This section is be- 

16-90-905. Uniform petition and order to seal records. 

RESEARCH REFERENCES 

ALR. Judicial Expunction of Criminal Judicial Expunction of Criminal Record 
Record of Convicted Adult in Absence of of Convicted Adult Under Statute-Ex- 
Authorizing Statute. 68 A.L.R.6th 1. punction Under Statutes Addressing 

Judicial Expunction of Criminal Record "First Offenders" and "Innocent Persons," 
of Convicted Adult Under Statute — Gen- Where Conviction Was for Minor Drug or 
eral Principles, and Expunction of Crimi- other Offense, Where Indictment Has Not 
nal Records Under Statutes Providing for Been PreS ented Against Accused or Ac- 
Such Relief Where Criminal proceeding Is cused Has been Released from Custod 
Terminated in Favor of Defendant, upon and Where Court Considered Impact of 
Completion of Probation, upon Suspended A7 - 77 D • r» «*• i n- • i xT j 
Sentence, and Where Expungement Relief ^^T'' ^t DlSml I SSa , 1 ' *»f d °"' 
Predicated upon Type, and Number, of f lbMi ^f'J^i Lesser-Included Of- 
Offenses. 69 A.L.R.6th 1. fenses - 70 A.L.R.6th 1. 



16-90-1201 PRACTICE, PROCEDURE, AND COURTS 

CASE NOTES 



246 



Analysis 

Attorney Discipline. 
Review. 

Attorney Discipline. 

Circuit court's order to dismiss the at- 
torney's conviction and to seal the record 
of the criminal proceeding was not bind- 
ing on the Arkansas Supreme Court for 
purposes of the disciplinary proceeding 
against the attorney because the court 
could not be bound by an expungement 
order made pursuant to a legislative en- 



actment when engaged in its constitu- 
tional mandate to regulate and discipline 
attorneys at law. Ligon v. Davis, 2012 Ark. 
440, — S.W.3d — , 2012 Ark. LEXIS 470 
(Nov. 29, 2012). 

Review. 

Circuit court erred by sealing the appli- 
cant's conviction for negligent-homicide 
pursuant to § 5-10-105, because given the 
plain meaning of § 5-10-105, the statute 
lacked any provision for expungement. 
State v. Martin, 2012 Ark. 191, — S.W.3d 
— (2012). 



Subchapter 12 — Encouragement of Treatment and Rehabilitation of 

Drug Users 

16-90-1201. Expungement of record. 

CASE NOTES 



Expungement of Prior Felony. 

Trial court did not err by admitting 
defendant's prior conviction for felony pos- 
session of drug paraphernalia into evi- 
dence as proof on a charge of possession of 
a firearm by a felon (FIP) because § 5-73- 
103(a)(1) specifically provided that defen- 
dant's expunged felony conviction could be 



used as proof on his FIP charge; although 
still uncodified, 1995 Ark. Acts. 595, § 1 
indicates legislative intent for an ex- 
punged felony conviction to remain a con- 
viction for the purposes of possession of a 
firearm by a felon. Smith v. State, 2011 
Ark. App. 539, — S.W.3d — (2011). 



CHAPTER 91 
APPEAL AND POST-CONVICTION 

Subchapter 1 — Appeal 



16-91-101. Right generally. 



CASE NOTES 



Appealable Judgments. 

Because the plain language of Ark. R. 
App. P. Crim. 1(a) and subsection (a) of 
this section required a conviction before a 
defendant had a right of appeal, and be- 
cause a disposition pursuant to Act 346 of 



1975, better known as the Arkansas First 
Offender Act, §§ 16-93-301 — 16-93-305, 
was not a conviction, defendant had no 
right to appeal. Lynn v. State, 2012 Ark. 6, 
— S.W.3d — (2012). 



247 



PROBATION AND PAROLE 

CHAPTER 93 
PROBATION AND PAROLE 



16-93-307 



Subchapter 2 — Parole Board 



16-93-208. Services and equipment. 



A.C.R.C. Notes. Acts 2012, No. 137, 
§ 3, provided: "ASSISTANCE PROVI- 
SION. The Department of Correction and 
the Department of Community Correction 
may provide services, furnishings, equip- 
ment and office space to assist the Parole 



Board in fulfilling the purposes for which 
the Board was created by law. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 3 — Probation and Suspended Imposition of Sentence 

16-93-303. Probation — First time offenders — Procedure. 

CASE NOTES 



Disposition Not a Conviction. 

Because the plain language of Ark. R. 
App. P. Crim. 1(a) and § 16-91-101(a) re- 
quired a conviction before a defendant had 
a right of appeal, and because a disposi- 
tion pursuant to Act 346 of 1975, better 



known as the Arkansas First Offender 
Act, §§ 16-93-301 — 16-93-305, was not a 
conviction, defendant had no right to ap- 
peal. Lynn v. State, 2012 Ark. 6, — S.W.3d 
— (2012). 



16-93-307. Probation generally — Revocation hearings. 

CASE NOTES 



Analysis 

Right to Confrontation 
Sufficiency of the Evidence. 
Waiver. 

Right to Confrontation 

Any right to confrontation error in al- 
lowing fingerprint evidence in a sus- 
pended sentence revocation hearing with- 
out presenting the witness who took the 
fingerprints was harmless because there 
was live testimony from a homeowner who 
caught defendant in the act of a burglary 
and who identified him as the burglar. 
Reynolds v. State, 2012 Ark. App. 705, — 
S.W.3d — , 2012 Ark. App. LEXIS 822 
(Dec. 12, 2012). 

Sufficiency of the Evidence. 

Because defendant failed to timely ob- 
ject to the admission of certain testimony, 
and because the circuit court was charged 



with resolving all questions of conflicting 
testimony and inconsistent evidence, pur- 
suant to former §§ 5-4-309(d) and 5-4- 
310(c)(2), a preponderance of the evidence 
supported the revocation of defendant's 
probation. Ellis v. State, 2011 Ark. App. 
654, — S.W.3d — (2011). 

Where the State filed a petition to re- 
voke defendant's probation for residential 
burglary alleging he violated the condi- 
tions of his probation by failing to pay 
fines, costs, and fees, failing to report to 
his probation officer, and providing of a 
false address to his probation officer, the 
trial court conducted his hearing pursu- 
ant to subsection (b) of this section; a 
county employee testified that he did not 
pay his fines, costs, and fees, and defen- 
dant's probation officer testified that he 
failed to report and did not live at the 
address he provided. The evidence was 
sufficient to support the trial court's deci- 
sion revoking probation. Foster v. State, 



16-93-308 



PRACTICE, PROCEDURE, AND COURTS 



248 



2013 Ark. App. 2, — S.W.3d — , 2013 Ark. 
App. LEXIS 9 (Jan. 16, 2013). 

Waiver. 

On appeal of the decision revoking de- 
fendant's suspended sentence for bur- 
glary, his argument that the trial court 
erred by failing to provide a reason for the 
revocation as required by subdivision 



(b)(5) of thsi section was not preserved for 
review because he failed to object. Love v. 
State, 2012 Ark. App. 600, — S.W.3d — , 
2012 Ark. App. LEXIS 705 (Oct. 24, 2012). 
Cited: Richards v. State, 2013 Ark. 
App. 15, — S.W.3d — , 2013 Ark. App. 
LEXIS 21 (Jan. 16, 2013). 



16-93-308. Probation generally — Revocation. 



CASE NOTES 



Analysis 

Revocation Proper. 
Sentence After Revocation. 
Sexual-Offender Registration. 
Sufficiency of the Evidence. 

Revocation Proper. 

Probation was properly revoked under 
subsection (d) of this section because, even 
setting aside alleged fine delinquencies 
and a misdemeanor conviction, appellant 
violated the conditions of his probation 
that prohibited him from possessing or 
using alcohol or illegal drugs. Pfeifer v. 
State, 2012 Ark. App. 556, — S.W.3d — 
(2012). 

Sentence After Revocation. 

Argument that appellant's due process 
rights under Ark. Const. Art. 2, § 8 were 
violated when a trial court failed to con- 
sider all of the sentencing options avail- 
able after a revocation of probation was 
not preserved for appellate review be- 
cause the argument was not raised when 
appellant was sentenced. Mewborn v. 
State, 2012 Ark. App. 195, — S.W.3d — 
(2012). 

In a case where probation was revoked, 
a 20-year sentence for Class B felony 
kidnapping was not improper since it was 
authorized under § 5-4-40 1(a)(3); the ap- 
pellate court was unable to reduce a sen- 
tence within the range of punishment 
contemplated by the Arkansas Legisla- 
ture. Moreover, since appellant failed to 
object to the sentence imposed, he was 
unable to argue on appeal that the trial 
court erred by failing to consider alterna- 
tives to the 20-year sentence. Pfeifer v. 
State, 2012 Ark. App. 556, — S.W.3d — 
(2012). 



Sexual-Offender Registration. 

Trial court did not clearly err in finding 
that defendant made no effort to comply 
with sexual-offender registration require- 
ments. Therefore, the trial court properly 
revoked defendant's suspended sentence. 
Muldrew v. State, 2012 Ark. App. 568, — 
S.W.3d — (2012). 

Sufficiency of the Evidence. 

Because defendant failed to timely ob- 
ject to the admission of certain testimony, 
and because the circuit court was charged 
with resolving all questions of conflicting 
testimony and inconsistent evidence, pur- 
suant to §§ 5-4-309(d) and 5-4-310(c)(2), a 
preponderance of the evidence supported 
the revocation of defendant's probation. 
Ellis v. State, 2011 Ark. App. 654, — 
S.W.3d — (2011). 

Because the trial court's finding that 
appellant failed to report to his probation 
officer was not clearly against the prepon- 
derance of the evidence as the probation 
officer testified that if appellant had in 
fact reported on August 10 it would be 
reflected in his records, revocation of his 
probation was proper under subsection (d) 
of this section. Major v. State, 2012 Ark. 
App. 501, — S.W.3d — (2012). 

Trial court revoked defendant's sus- 
pended sentence for burglary based on 
allegations that he failed to paying his 
court-ordered fees, did not notify the sher- 
iff of his current address, and committed 
new criminal offenses; at the revocation 
hearing, a county employee testified that 
defendant did not make any payments 
toward his $700 bill for costs and the court 
also heard testimony indicating that de- 
fendant shot a man seven times. Defen- 
dant did not challenge the sufficiency of 
the evidence supporting the revocation of 
his suspended sentence under subsection 



249 



PROBATION AND PAROLE 



16-93-609 



(d) of this section. Love v. State, 2012 Ark. 
App. 600, — S.W.3d — , 2012 Ark. App. 
LEXIS 705 (Oct. 24, 2012). 

Sufficient evidence supported the trial 
court's decision to revoke defendant's pro- 
bation for residential burglary because he 
and a county employee testified that he 
did not pay his fines, costs, and fees as 
directed. Although defendant testified 
that he did not have a job or any income, 
the trial court did not err in revoking his 
probation because he did not provide a 
reasonable excuse under subsection (d) of 
this section for his failure to comply with 
his probation conditions. Foster v. State, 
2013 Ark. App. 2, — S.W.3d — , 2013 Ark. 
App. LEXIS 9 (Jan. 16, 2013). 

Revocation of defendant's probation 
was proper under this section because 
defendant admitted to drinking alcohol 



and failing to report to his probation offi- 
cer. Any argument that the trial court's 
findings were against the preponderance 
of the evidence would clearly be without 
merit; because of that, counsel's motion to 
be relieved as counsel under Ark. Sup. Ct. 
& Ct. App. R. 4-3 was properly granted. 
Martin v. State, 2013 Ark. App. 7, — 
S.W.3d — , 2013 Ark. App. LEXIS 11 (Jan. 
16, 2013). 

Trial court did not err under subsection 
(d) of this section in revoking defendant's 
probation for possession of a controlled 
substance; defendant admittedly failed to 
abide by the terms of probation, particu- 
larly with respect to an obligation to re- 
port to the probation officer in person. 
Lanfair v. State, 2013 Ark. App. 51, — 
S.W.3d — , 2013 Ark. App. LEXIS 61 (Jan. 
30, 2013). 



16-93-309. Probation generally — Revocation hearing — Sen- 
tence alternatives. 

CASE NOTES 



Sentence After Revocation. 

Argument that appellant's due process 
rights under Ark. Const. Art. 2, § 8 were 
violated when a trial court failed to con- 
sider all of the sentencing options avail- 
able after a revocation of probation was 



not preserved for appellate review be- 
cause the argument was not raised when 
appellant was sentenced. Mewborn v. 
State, 2012 Ark. App. 195, — S.W.3d — 

(2012). 



16-93-311. Probation generally — Restitution. 

CASE NOTES 



Jurisdiction. 

Court retained jurisdiction to revoke 
the suspended sentence for failure to pay 
restitution, because the petitioner was 
charged with fleeing to avoid arrest for 
possession of marijuana and causing prop- 



erty damage while fleeing, and was or- 
dered to pay restitution for the damage he 
caused during the course of the criminal 
episode. Arter v. State, 2012 Ark. App. 
327, — S.W.3d — (2012). 



Subchapter 6 — Parole — Eligibility 

16-93-609. Effect of more than one conviction for certain felo- 
nies. 

CASE NOTES 



Cited: Smith v. Hobbs, 2012 Ark. 360, 
- S.W.3d — (2012). 



16-93-611 PRACTICE, PROCEDURE, AND COURTS 

16-93-611. [Repealed.] 

CASE NOTES 



250 



Analysis 

Constitutionality. 
Applicability. 

Constitutionality. 

This section (repealed in 2011), which 
was amended to repeal a sunset provision 
of a rule requiring inmates convicted of 
manufacturing methamphetamine to 
serve at least 70 percent of their sentences 
before being eligible for parole, was con- 
stitutional under Ark. Const. Art. 5, § 23, 
because the constitutional provision re- 
ferred only to enactment of laws by refer- 



ence to their titles and did not prohibit 
repeal of laws by reference to their titles. 
Rowe v. Hobbs, 2012 Ark. 244, — S.W.3d 
— (2012). 

Applicability. 

Counsel was not ineffective for failing to 
challenge the constitutionality and effect 
of the 70 percent law; the status of defen- 
dants' parole eligibility was immaterial to 
whether the decision reached by the jury 
would have been different absent the al- 
leged errors, which was the standard un- 
der Strickland. Myers v. State, 2012 Ark. 
143, — S.W.3d — (2012). 



Subchapter 12 — Community Punishment 

16-93-1201. Findings and determinations. 

CASE NOTES 

Cited: Arnold v. State, 2011 Ark. 395, 
— S.W.3d — (2011). 

16-93-1207. Order of court. 

CASE NOTES 



Analysis 

Construction. 
Advisory Opinion. 

Construction. 

In a case in which appellant challenged 
the denial of his petition to seal the record 
in his 1997 theft-of-property case, the Su- 
preme Court declined to engage in an 
interpretation of the 1997 version of this 
section, where appellant failed to object 
below to the application of the 2011 ver- 
sion and failed to raise any arguments on 
appeal in relation to the 1997 version. 



Sullivan v. State, 2012 Ark. 178, 
— (2012). 



S.W.3d 



Advisory Opinion. 

In a case in which appellant challenged 
the denial of his petition to seal the record 
in his 1997 theft-of-property case, the Su- 
preme Court declined to address the argu- 
ments that were raised by appellant in 
relation to the 2011 version of this section, 
because to do so would be to issue an 
advisory opinion on a version of the stat- 
ute that had no application to the instant 
case. Sullivan v. State, 2012 Ark. 178, — 
S.W.3d — (2012). 



251 



SENTENCING 

CHAPTER 94 



16-97-101 



EXTRADITION 

Subchapter 2 — Uniform Criminal Extradition Act 

16-94-216. Bail. 

RESEARCH REFERENCES 

ALR. Allowance of Bail in International 
Extradition Proceedings. 60 A.L.R. Fed. 
2d 203. 

CHAPTER 95 
INTERSTATE AGREEMENT ON DETAINERS 

16-95-101. Agreement on Detainers. 

RESEARCH REFERENCES 



ALR. Construction and Application of 
Article III of Interstate Agreement on De- 
tainers (IAD) — Issues Related to "Speedy 
Trial" Requirement, and Construction of 
Essential Terms. 70 A.L.R.6th 361. 

Construction and Application of Article 
III of Interstate Agreement on Detainers 
(IAD): Issues Related to Certificate, Re- 
quest by Defendant for Disposition, and 
"Anti-Shuttling" Provision. 71 A.L.R.6th 



335. 

Construction and Application of Article 
III of Interstate Agreement on Detainers 
(IAD): Issues Related To Custody, Duties 
of Prison Officials, Waiver of Extradition, 
Escape, Assistance of Counsel, and Neces- 
sity of Hearing. 72 A.L.R.6th 141. 



CHAPTER 97 

SENTENCING 

16-97-101. Bifurcated sentencing procedures. 

CASE NOTES 



Analysis 

Alternative Sentences. 
Right of Confrontation. 

Alternative Sentences. 

During defendant's trial for theft by 
receiving and theft of property, the court 
did not err under subdivision (4) of this 
section in refusing to give defendant's 
proffered jury instruction on the availabil- 
ity of probation as an alternative sentence 
because it gave the request for the in- 



struction more than proper consideration; 
after previously completing a drug pro- 
gram, defendant had once again become 
involved with known felons. Malone v. 
State, 2012 Ark. App. 280, — S.W.3d — 
(2012). 

Right of Confrontation. 

Right of confrontation guaranteed by 
U.S. Const. Amend. VI and Ark. Const. 
Art. II, § 10 extends to a defendant's 
sentencing proceeding before a jury. To the 
extent Wallace v. State, 2010 Ark. App. 



16-97-103 



PRACTICE, PROCEDURE, AND COURTS 



252 



706, 2010 Ark. App. LEXIS 748, conflicted 
with this holding, it was overruled. 
Vankirk v. State, 2011 Ark. 428, — S.W.3d 
— (2011). 

Where defendant pled guilty to rape 
and elected to be sentenced by a jury in a 
bifurcated proceeding, the trial court 



erred in admitting a videotaped statement 
of the child rape victim during the sen- 
tencing proceeding, because this violated 
defendant's right of confrontation under 
U.S. Const. Amend. VI and Ark. Const. 
Art. II, § 10. Vankirk v. State, 2011 Ark. 
428, — S.W.3d — (2011). 



16-97-103. Evidence. 



CASE NOTES 



Analysis 

Admissibility. 
Character Evidence. 
Jury Instructions. 
Victim Impact Evidence. 

Admissibility. 

Upon defendant's conviction for rape 
and second-degree battery, he argued that 
the admission of evidence of his prior 
alleged misconduct involving a minor dur- 
ing the sentencing phase of trial violated 
his rights under the Confrontation 
Clause; however, the error was not pre- 
served for review. Pursuant to this sec- 
tion, certain evidence was admissible at 
sentencing that would not have been ad- 
missible at the guilt phase of a trial, and if 
defendant did not wish for this evidence to 
come in during sentencing, he should have 
raised an objection. White v. State, 2012 
Ark. 221, — S.W.3d — (2012). 

Court did not abuse its discretion by 
allowing into evidence the transcript of 
chats between defendant and the officer, 
whom defendant believed to be a 14-year 
old female, because the transcript was the 
best method for the court to gauge the 
veracity of defendant's attempts to down- 
play his activities and contained much 
relevant information not found in the 
agreed statement of facts; in this section, 
Arkansas Legislature listed several other 
types of evidence that could be considered, 
including evidence relevant to guilt pre- 
sented at the first stage. Howerton v. 
State, 2012 Ark. App. 331, — S.W.3d — 
(2012). 

In an aggravated robbery case, a trial 
court did not abuse its discretion by ad- 
mitting evidence at sentencing of appel- 
lant's participation in a prior robbery; it 
was of no consequence that appellant had 
not yet been convicted in the robbery at 



issue. As to relevance, the fact that appel- 
lant was an active participant in two rob- 
beries, just days apart and committed in 
nearly the same fashion, was relevant 
character evidence and was evidence of 
aggravated circumstances showing his 
propensity to engage in similar criminal 
conduct. Thomas v. State, 2012 Ark. App. 
466, — S.W.3d — (2012). 

Character Evidence. 

After defendant was convicted of sec- 
ond-degree sexual assault, a woman was 
properly allowed to testify at the sentenc- 
ing hearing that he had raped her nine 
years earlier, as other crime evidence that 
might not be admissible at the guilt phase 
under Ark. R. Evid. 404(b) was admissible 
at sentencing under subdivision (5) of this 
section as relevant evidence of defendant's 
character that the jury could consider in 
determining the appropriate sentence. 
McElroy v. State, 2011 Ark. App. 533, — 
S.W.3d — (2011). 

Although the testimony of the three 
witnesses regarding prior incidents in- 
volving defendant did not involve kidnap- 
ping, given the similarities between the 
events, including missing underwear, de- 
ceptive tactics to gain entry into a wit- 
ness's home, use of a latex glove, and his 
use of a pellet gun and his threat to attack 
another witness's husband, under Ark. R. 
Evid. 401 and subdivision (5) of this sec- 
tion, the trial court did not abuse its 
discretion in admitting the testimony at 
the sentencing phase of the trial. Huff v. 
State, 2012 Ark. 388, — S.W.3d — (2012). 

Jury Instructions. 

In an aggravated robbery case where 
habitual offender status was at issue, a 
trial court did not err by refusing to give 
the jury an instruction on the sentences 
that appellant had received in federal 
court for prior bank robbery convictions 



253 



ARBITRATION AND AWARD 



16-108-201 



because it was within the trial court's 
discretion to do so, pursuant to subdivi- 
sion (2) of this section. Walden v. State, 
2012 Ark. App. 307, — S.W.3d — (2012). 

Victim Impact Evidence. 

Testimony of the chairman of a non- 
profit group's board about the group's re- 
sponse to a flooding disaster, the resulting 
funerals, and the chairman's personal re- 



lationships with the bereaved was rel- 
evant victim-impact evidence under Ark. 
R. Evid. 402 and this section at defen- 
dant's sentencing hearing as although the 
group was able to meet the disaster vic- 
tims' needs, the testimony illustrated the 
difficulties the group experienced due to 
defendant's theft; the evidence was not 
unduly prejudicial. Brown v. State, 2011 
Ark. App. 608, — S.W.3d — (2011). 



SUBTITLE 7. PARTICULAR PROCEEDINGS AND 

REMEDIES 

CHAPTER 106 
ACTIONS BY OR AGAINST STATE 

Subchapter 2 — Prisoners — Court Actions 

16-106-202. Premature, frivolous, or malicious lawsuits. 

CASE NOTES 



Application. 

Petitioner failed to show that the circuit 
court erred when it determined his habeas 
petition was a civil action that constituted 
one strike for purposes of § 16-68-607, 
because this section had no application to 
§ 16-68-607, and did apply, when the cir- 



cuit court correctly found that the petition 
for writ of habeas corpus failed to state a 
claim upon which relief could be granted 
and the petition did constitute a strike for 
purposes of that section. McArty v. Hobbs, 
2012 Ark. 257, — S.W.3d — (2012). 



CHAPTER 108 
ARBITRATION AND AWARD 

Subchapter 2 — Uniform Arbitration Act 



16-108-201. Definitions. 



CASE NOTES 



Insurance. 

Circuit court did not err in denying an 
insurer's motion to compel arbitration in 
insurers' action alleging breach of an in- 
surance contract because the McCarran- 
Ferguson Act, 15 U.S.C.S. §§ 1011 et seq., 
did not allow the Federal Arbitration Act 
(FAA), 9 U.S.C.S. §§ 1-16, to preempt this 
section, the Arkansas Uniform Arbitration 
Act, which prohibited arbitration under 
the facts; application of the FAA to enforce 



the arbitration agreement between the 
parties would invalidate the operation of 
subdivision (b)(2) of this section. Southern 
Pioneer Life Ins. Co. v. Thomas, 2011 Ark. 
490, — S.W.3d — (2011). 

Subdivision (b)(2) of this section, the 
Arkansas Uniform Arbitration Act, regu- 
lates the business of insurance by exempt- 
ing arbitration agreements in insurance 
contracts from enforcement, and subdivi- 
sion (b)(2) regulates insurance within the 



16-108-202 PRACTICE, PROCEDURE, AND COURTS 254 

meaning of the McCarran-Ferguson Act, either party to compel arbitration of dis- 
15 U.S.C.S. §§ 1011 et seq.; subdivision putes arising thereunder, and it is not 
(b)(2), affects policyholder risk by trans- limited to entities within the insurance 
ferring or spreading the risk by introduc- industry as it also exempts tort and em- 
ing the possibility of jury verdicts into the ployment claims from arbitration. South- 
process for resolving disputed claims, it ern Pioneer Life Ins. Co. v. Thomas, 2011 
regulates an integral part of the relation- Ark. 490, — S.W.3d — (2011). 
ship between an insurer and insured by Cited: Nisha, LLC v. Tribuilt Constr. 
invalidating an otherwise mandatory in- Group, LLC, 2012 Ark. 130, — S.W.3d — 
surance-contract term that would allow (2012). 

16-108-202. Notice. 

CASE NOTES 

Cited: Nisha, LLC v. Tribuilt Constr. 
Group, LLC, 2012 Ark. 130, — S.W.3d — 

(2012). 

16-108-203. When subchapter applies. 

CASE NOTES 

Cited: Nisha, LLC v. Tribuilt Constr. 
Group, LLC, 2012 Ark. 130, — S.W.3d — 
(2012). 

16-108-205. Application for judicial relief. 

CASE NOTES 

Representation. opted by Arkansas , and if a hearing is held 

Nonlawyer's representation of a corpo- during arbitration, the parties have the 

ration in arbitration proceedings consti- right to be heard, present evidence mate- 

tutes the unauthorized practice of law. rial to the controversy, and cross-examine 

Arbitration proceedings bear significant witnesses appearing at the hearing. Ni- 

indicia of legal proceedings under the Uni- sha, LLC v. Tribuilt Constr. Group, LLC, 

form Arbitration Act, which has been ad- 2012 Ark. 130, — S.W.3d — (2012). 

16-108-211. Appointment of arbitrator — Service as a neutral 
arbitrator. 

CASE NOTES 

Cited: Nisha, LLC v. Tribuilt Constr. 
Group, LLC, 2012 Ark. 130, — S.W.3d — 
(2012). 



255 ARBITRATION AND AWARD 16-108-230 

16-108-212. Disclosure by arbitrator. 

CASE NOTES 

Cited: Nisha, LLC v. Tribuilt Constr. 
Group, LLC, 2012 Ark. 130, — S.W.3d — 

(2012). 

16-108-213. Action by majority. 

CASE NOTES 

Cited: Nisha, LLC v. Tribuilt Constr. 
Group, LLC, 2012 Ark. 130, — S.W.3d — 
(2012). 

16-108-222. Confirmation of award. 

CASE NOTES 

Res Judicata. titled to preclusive effect where the ele- 

Applicationofresjudicatatoanarbitra- ments of res judicata were satisfied. El- 

tion award, although unconfirmed under sner v. Kalos Fin. Servs., Inc., 2012 Ark. 

this section and § 16-108-223(b), was App. 639, — S.W.3d — , 2012 Ark. App. 

proper to bar investors' action against an LEXIS 746 (Nov. 7, 2012). 
investment firm, as the award was en- 

16-108-223. Vacating award. 

CASE NOTES 

Res Judicata. was entitled to preclusive effect where the 

Application of res judicata to an arbitra- elements of res judicata were satisfied, 

tion award, although unconfirmed under Eisner v. Kalos Fin. Servs., Inc., 2012 Ark. 

§ 16-108-222 and subdivision (b) of this App. 639, — S.W.3d — , 2012 Ark. App. 

section, was proper to bar investors' action LEXIS 746 (Nov. 7 2012). 
against an investment firm, as the award 

16-108-228. Appeals. 

CASE NOTES 

Cited: HPD, LLC v. Tetra Techs., Inc., 
2012 Ark. 408, — S.W.3d — , 2012 Ark. 
LEXIS 427 (Nov. 1, 2012). 

16-108-230. Savings clause — Certain actions excluded. 

CASE NOTES 

Employer-Employee Dispute. against former employees because this 

Trial court did not err in refusing to section, the Arkansas Uniform Arbitration 

compel arbitration with respect to a for- Act, expressly excluded employer-em- 

mer employer's breach-of-contract actions ployee disputes, and the only arbitration 



16-111-101 



PRACTICE, PROCEDURE, AND COURTS 



256 



clause was found in an employment agree- 
ment that had expired three years earlier 
but the employer made no claim based on 
the employment agreement; rather, the 
employer based the breach-of-contract 



claims on a merger agreement and a cov- 
enant not to compete agreement, which 
unambiguously did not provide for arbi- 
tration. Phillippy v. ANB Fin. Servs., LLC, 
2011 Ark. App. 639, — S.W.3d — (2011). 



CHAPTER 111 
DECLARATORY JUDGMENTS 



16-111-101. Definition, 



CASE NOTES 



Justiciable Controversy. 

Doctor who had allowed his Arkansas 
medical license to lapse did not have 
standing to obtain a judgment declaring 
that § 17-95-409(b) did not apply to con- 
tracts under the Community Match Loan 
and Scholarship Program, established un- 



der §§ 6-81-715 to 6-81-717, because the 
Declaratory Judgment Statute, § 16-111- 
101 et seq., was applicable only where 
there was a present actual controversy. 
Nelson v. Ark. Rural Med. Practice Loan & 
Scholarship Bd., 2011 Ark. 491, — S.W.3d 
— (2011). 



16-111-102. Legislative declaration — Purpose — Construction. 

CASE NOTES 



No Existing Legal Controversy. 

Court did not err in concluding that the 
business was not entitled to declaratory 
relief, because there was no existing legal 
controversy, when the business sought a 
declaration that its conduct (sweepstakes 
promotion) was legal and not subject to 
prosecution, and it was apparent the busi- 



ness was seeking an advisory opinion 
rather than the resolution of an actual 
controversy; courts did not sit for the 
purpose of determining speculative and 
abstract questions of law or laying down 
rules for future conduct. Cancun Cyber 
Cafe & Bus. Ctr., Inc. v. City of N. Little 
Rock, 2012 Ark. 154, — S.W.3d — (2012). 



16-111-104. Right to determination generally. 



CASE NOTES 



Justiciable Controversy. 

Because the operator failed to present a 
justiciable controversy under this section, 
the declaratory judgment in its favor was 
not proper; the requested declaratory re- 
lief regarding any alleged due-process vio- 
lations, which were based upon the lack of 
a hearing, was moot, and the circuit court 
erred in granting the operator's motion for 
summary judgment. Ark. Dep't of Human 
Servs. v. Civitan Ctr., Inc., 2012 Ark. 40, 
— S.W.3d — (2012). 

Court did not err in concluding that the 
business was not entitled to declaratory 
relief, because there was no existing legal 
controversy, when the business sought a 



declaration that its conduct (sweepstakes 
promotion) was legal and not subject to 
prosecution, and it was apparent the busi- 
ness was seeking an advisory opinion 
rather than the resolution of an actual 
controversy; courts did not sit for the 
purpose of determining speculative and 
abstract questions of law or laying down 
rules for future conduct. Cancun Cyber 
Cafe & Bus. Ctr., Inc. v. City of N. Little 
Rock, 2012 Ark. 154, — S.W.3d — (2012). 
Circuit court's determination that Ark. 
Code Ann. §§ 25-19-104 and 25-19-106 
were unconstitutional was improper be- 
cause declaratory relief was inappropriate 
under this section as appellees did not yet 



257 



HABEAS CORPUS 



16-112-101 



have a case or controversy ready for deci- 
sion by the courts. Appellees received a 
legal opinion on the effects of certain pro- 
visions of the state's Freedom of Informa- 



tion Act rather than resolution of an ac- 
tual controversy. McCutchen v. City of 
Fort Smith, 2012 Ark. 452, — S.W.3d — , 
2012 Ark. LEXIS 485 (Dec. 6, 2012). 



16-111-106. Parties. 



CASE NOTES 



Counterclaim. 

When appellant law firm nonsuited its 
Freedom of Information Act claim under 
§ 25-19-105, the circuit court did not err 
in permitting appellees, several doctors, 
an attorney, and a hospital, to move for- 



ward on their counterclaim. Under Ark. R. 
Civ. P. 41(a)(3), a defendant has the right 
to pursue a counterclaim even though the 
plaintiff has dismissed its original claim. 
Harrill & Sutter, PLLC v. Farrar, 2012 
Ark. 180, — S.W.3d — (2012). 



CHAPTER 112 
HABEAS CORPUS 

Subchapter 1 — Appeals — New Scientific Evidence 



16-112-101. Procedure. 



CASE NOTES 



Analysis 

Writ Denied. 
Written Findings. 

Writ Denied. 

Appellant sentenced to 540 months' in- 
carceration for manufacturing a con- 
trolled substance, two counts of posses- 
sion of drug paraphernalia with the intent 
to manufacture methamphetamine, and 
failure to appear was not entitled to pro- 
ceed with an appeal of the decision deny- 
ing his petition for writ of habeas corpus 
pursuant to §§ 16-112-101 to 16-112-123, 
because his allegations did not establish 
that the commitment was facially invalid; 
and his ineffective assistance of counsel 
and due process claims were not cogni- 
zable in a petition for writ of habeas 
corpus. The trial court was not without 
jurisdiction to accept appellant's guilty 
plea for the charges of possession of drug 



paraphernalia with intent to manufacture 
methamphetamine, as it was not a lesser- 
included offense of manufacturing meth- 
amphetamine. McHaney v. Hobbs, 2012 
Ark. 361, — S.W.3d — (2012). 

trial court did err in denying appel- 
lant's petition for writ of habeas corpus 
pursuant to §§ 16-112-101 to 16-101-123, 
because he did not establish that the trial 
court lacked jurisdiction by virtue of a 
defective information. Murry v. Hobbs, 
2013 Ark. 29, — S.W.3d — , 2013 Ark. 
LEXIS 40 (Jan. 31, 2013). 

Written Findings. 

Circuit court committed no error if it did 
not make written findings to support its 
decision denying appellant's petition for a 
writ of habeas corpus because the statutes 
relating to habeas-corpus proceedings 
that were not filed under Act 1780 con- 
tained no such requirement. Bradford v. 
State, 2011 Ark. 494, — S.W.3d — (2011). 



16-112-103 PRACTICE, PROCEDURE, AND COURTS 

16-112-103. Petition. 



258 



CASE NOTES 



Analysis 

Denial of Petition. 

Petition Denied Without Hearing. 

Sufficiency of Petition. 

Denial of Petition. 

Circuit court did not err in denying 
appellant's petition for a writ of habeas 
corpus because to the extent that appel- 
lant would directly challenge his convic- 
tion, the sentence that he received for the 
conviction had since expired; to the extent 
that appellant would raise the issue of 
validity of his sentence concerning its use 
to enhance his life sentence in his prior 
conviction, he failed to raise a claim that 
would support relief. Bradford v. State, 
2011 Ark. 494, — S.W.3d — (2011). 

Circuit court did not err in denying 
appellant's petition for a writ of habeas 
corpus because his claims that some of the 
judgments used to enhance his sentence 
were invalid did not constitute a challenge 
to the jurisdiction of the trial court over 
the charge or to the facial validity of the 
commitment order; therefore, appellant 
failed to present a claim that would sup- 
port habeas corpus relief. Bradford v. 
State, 2011 Ark. 494, — S.W.3d — (2011). 

Circuit court did not err in denying 
appellant's petition for a writ of habeas 
corpus because although appellant argued 
that he was still being held by the Arkan- 
sas Department of Correction (ADC), even 
though his conviction was reversed on 
appeal, the ADC's records did not reflect 
that appellant was incarcerated pursuant 
to his conviction; appellant's challenge to 
the conviction, even if it was valid at the 
time the petition was filed, was moot be- 
cause any judgment rendered would have 
no practical legal effect upon an existing 
legal controversy. Bradford v. State, 2011 
Ark. 494, — S.W.3d — (2011). 

Denial of writ of habeas corpus was 
proper, because allegations of ineffective 
assistance of counsel were not cognizable 
in a habeas proceeding, none of the claims 
called into question the trial court's juris- 
diction or the validity of the judgment- 
and-commitment order, and neither the 
question concerning the validity of the 



agreement between the petitioner and his 
attorney for representation nor the asser- 
tions of trial error were sufficient to war- 
rant granting the writ. Thomas v. State, 
2012 Ark. 79, — S.W.3d — (2012). 

Petitioner was not entitled to manda- 
mus relief (seeking a ruling on the motion 
for extension of time to lodge the record on 
appeal), because the petitioner filed his 
petition to vacate and or to set aside the 
judgment in the circuit court nearly five 
years after the date of his conviction. 
Subdivision (10)(B) of this section man- 
dated that there shall be a rebuttable 
presumption against timeliness for any 
motion not made within thirty-six months 
of the date of conviction and since the 
DNA testing was available at the time of 
his trial, the petitioner's attempt to rebut 
the presumption against timeliness failed, 
and nothing in the record suggested that 
the prosecuting attorney was properly 
served and the petition for writ of manda- 
mus did not allege that the prosecuting 
attorney was served. Mitchael v. State, 
2012 Ark. 256, — S.W.3d — (2012). 

Dismissal of the petition for writ of 
habeas corpus was proper, because the 
applicant did not present a claim that 
could be resolved through a habeas pro- 
ceeding, when the issue was one concern- 
ing an excessive sentence and not an ille- 
gal sentence, and the majority of the 
applicant's claims were assertions of trial 
error that did not implicate the facial 
validity of the judgment or the jurisdiction 
of the trial court. Bliss v. Hobbs, 2012 Ark. 
315, — S.W.3d — (2012). 

Defendant argued that he was not told, 
prior to entering his guilty plea, that this 
section would apply to his sentence, how- 
ever, he failed to show how this allegation 
would make the judgment against him 
facially invalid or to support his claim to 
believe that he was illegally detained un- 
der subdivision (a)(1) of this section, all 
claims of ineffective assistance had to be 
brought under a timely Ark. R. Crim. P. 
37.1 petition, and a petition for writ of 
habeas corpus was not a substitute for a 
timely petition for postconviction relief. 
Smith v. Hobbs, 2012 Ark. 360, — S.W.3d 
— (2012). 



259 



HABEAS CORPUS 



16-112-201 



Appellant sentenced to 540 months' in- 
carceration for manufacturing a con- 
trolled substance, two counts of posses- 
sion of drug paraphernalia with the intent 
to manufacture methamphetamine, and 
failure to appear was not entitled to pro- 
ceed with an appeal of the decision deny- 
ing his petition for writ of habeas corpus, 
because his allegations did not call into 
question the trial court's jurisdiction or 
establish that the commitment was fa- 
cially invalid under subdivision (a)(1) of 
this section. The trial court was not with- 
out jurisdiction to accept appellant's 
guilty plea for the charges of possession of 
drug paraphernalia with intent to manu- 
facture methamphetamine, as it was not a 
lesser-included offense of manufacturing 
methamphetamine. McHaney v. Hobbs, 
2012 Ark. 361, — S.W.3d — (2012). 

Appellant filed a petition for writ of 
habeas corpus that challenged the judg- 
ment that imposed an aggregate sentence 
of 1080 months' imprisonment for posses- 
sion of cocaine with intent to deliver and 
possession of marijuana with intent to 
deliver. The trial court did not err by 
denying appellant's petition, because he 
failed to provide probable cause that he 
was illegally detained as required by sub- 
division (a)(1) of this section and pre- 
sented only conclusory allegations to sup- 
port his claim that his sentence was 
improperly enhanced using an out-of- 
state conviction. Darrough v. State, 2013 
Ark. 28, — S.W.3d — , 2013 Ark. LEXIS 32 
(Jan. 31, 2013). 



Trial court did err in denying appel- 
lant's petition for writ of habeas corpus 
pursuant to §§ 16-112-101 to 16-101-123, 
because he did not establish that the trial 
court lacked jurisdiction under subdivi- 
sion (a)(1) of this section by virtue of a 
defective information. Murry v. Hobbs, 
2013 Ark. 29, — S.W.3d — , 2013 Ark. 
LEXIS 40 (Jan. 31, 2013). 

Petition Denied Without Hearing. 

Circuit court did not err by failing to 
conduct a hearing when it denied appel- 
lant's writ of habeas corpus petition be- 
cause appellant failed to demonstrate 
probable cause for the issuance of the writ 
pursuant to subdivision (A)(1) of this sec- 
tion; the records of the Arkansas Depart- 
ment of Correction did not reflect that 
appellant was incarcerated pursuant to 
his conviction, and appellant's challenge 
to the conviction, even if it was valid at 
the time the petition was filed, was moot 
because any judgment rendered would 
have no practical legal effect upon an 
existing legal controversy. Bradford v. 
State, 2011 Ark. 494, — S.W.3d — (2011). 

Sufficiency of Petition. 

Because defendant raised no argument 
that demonstrated a jurisdictional defect 
in the proceeding against defendant or 
that defendant's commitment was invalid, 
defendant did not state a basis to warrant 
issuance of a writ of habeas corpus under 
subdivision (a)(1) of this section; conse- 
quently, the circuit court did not err in 
denying the relief sought. Randolph v. 
State, 2011 Ark. 510, — S.W.3d — (2011). 



Subchapter 2 — Other Relief — New Scientific Evidence 

16-112-201. Writ of Habeas Corpus — New scientific evidence. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- erning Requests for Postconviction DNA 
cation of State Statutes and Rules Gov- Testing. 72 A.L.R.6th 227. 

CASE NOTES 



Analysis 



Denial of Petition. 
Relief Denied. 
Scientific Evidence. 



Denial of Petition. 

Dismissal of the petition for writ of 
habeas corpus was proper, because the 
applicant did not present a claim that 
could be resolved through a habeas pro- 



16-112-202 



PRACTICE, PROCEDURE, AND COURTS 



260 



ceeding, when the issue was one concern- 
ing an excessive sentence and not an ille- 
gal sentence, and the majority of the 
applicant's claims were assertions of trial 
error that did not implicate the facial 
validity of the judgment or the jurisdiction 
of the trial court. Bliss v. Hobbs, 2012 Ark. 
315, — S.W.3d — (2012). 

Relief Denied. 

Appellant convicted and sentenced to 
300 months' imprisonment for rape did 
not prove a basis for a writ of habeas 
corpus under this section with his claim 
that he had new scientific evidence to 
prove his innocence because his assertions 
did not challenge the jurisdiction of the 
court or the facial validity of the judg- 
ment-and-commitment order. Girley v. 
Hobbs, 2012 Ark. 447, — S.W.3d — , 2012 
Ark. LEXIS 471 (Nov. 29, 2012). 

Scientific Evidence. 

Whether or not the court correctly de- 
termined identity was not at issue as 
required to grant a motion for testing 
under § 16-112-202, appellant, an in- 
mate, was not entitled to relief. More 
fundamentally, he failed to show a basis to 
commence a proceeding for the writ under 
either basis set out in subsection (a) of this 
section. Guy v. State, 2011 Ark. 305, — 
S.W.3d — (2011). 

Denial of appellant's, an inmate's, peti- 



tion for habeas corpus under §§ 16-112- 
201 to 16-112-208 was appropriate be- 
cause he had sought and received DNA 
testing, the results of which were incon- 
clusive and the Arkansas State Crime 
Laboratory did not have a duty to per- 
form, or direct to be performed, additional 
mitochondrial DNA testing, § 16-112- 
208(b). Pitts v. State, 2011 Ark. 322, — 
S.W.3d — (2011). 

Petitioner was not entitled to manda- 
mus relief (seeking a ruling on the motion 
for extension of time to lodge the record on 
appeal), because the petitioner filed his 
petition to vacate and or to set aside the 
judgment in the circuit court nearly five 
years after the date of his conviction. 
Section 16-112-202(10)(B) mandated that 
there shall be a rebuttable presumption 
against timeliness for any motion not 
made within thirty-six months of the date 
of conviction and since the DNA testing 
was available at the time of his trial, the 
petitioner's attempt to rebut the presump- 
tion against timeliness failed, and nothing 
in the record suggested that the prosecut- 
ing attorney was properly served and the 
petition for writ of mandamus did not 
allege that the prosecuting attorney was 
served. Mitchael v. State, 2012 Ark. 256, 
— S.W.3d — (2012). 

Cited: Hill v. State, 2012 Ark. 204, — 
S.W.3d — (2012). 



16-112-202. Form of motion. 



RESEARCH REFERENCES 



ALR. Validity, Construction, and Appli- 
cation of State Statutes and Rules Gov- 



erning Requests for Postconviction DNA 
Testing. 72 A.L.R.6th 227. 



CASE NOTES 



Analysis 

Petition Denied and Dismissed. 
Scientific Testing. 
Time Limitations. 

Petition Denied and Dismissed. 

Petitioner was not entitled to manda- 
mus relief (seeking a ruling on the motion 
for extension of time to lodge the record on 
appeal), because the petitioner filed his 
petition to vacate and or to set aside the 
judgment in the circuit court nearly five 
years after the date of his conviction. 



Subdivision (10)(B) of this section man- 
dated that there shall be a rebuttable 
presumption against timeliness for any 
motion not made within thirty-six months 
of the date of conviction and since the 
DNA testing was available at the time of 
his trial, the petitioner's attempt to rebut 
the presumption against timeliness failed, 
and nothing in the record suggested that 
the prosecuting attorney was properly 
served and the petition for writ of manda- 
mus did not allege that the prosecuting 
attorney was served. Mitchael v. State, 
2012 Ark. 256, — S.W.3d — (2012). 



261 



HABEAS CORPUS 



16-112-208 



Scientific Testing. 

Whether or not the court correctly de- 
termined identity was not at issue as 
required to grant a motion for testing 
under this section, appellant, an inmate, 
was not entitled to relief. More fundamen- 
tally, he failed to show a basis to com- 
mence a proceeding for the writ under 
either basis set out in § 16-112-201(a). 
Guy v. State, 2011 Ark. 305, — S.W.3d — 
(2011). 

Time Limitations. 

Under subdivision (10)(B) of this sec- 
tion, there was a rebuttable presumption 
of untimeliness for a petition for DNA 
testing filed more than 36 months after a 
conviction. The circuit court correctly de- 
termined that the petition was untimely 
because the petition failed to establish 
any of the enumerated grounds for rebut- 



ting the presumption. Cooper v. State, 
2012 Ark. 123, — S.W.3d — (2012). 

Trial court did not err in dismissing 
defendant's petition for postconviction re- 
lief because defendant's petition failed to 
establish the required rebuttal of the pre- 
sumption of untimeliness, pursuant to 
subdivision (10)(B) of this section, and, 
therefore, failed to provide a basis for the 
court to assume jurisdiction under §§ 16- 
112-201 to 16-112-208. Hill v. State, 2012 
Ark. 204, — S.W.3d — (2012). 

Habeas corpus petitioner failed to rebut 
the presumption against timeliness pur- 
suant to subdivision (10)(B) of this sec- 
tion; while petitioner alleged that peti- 
tioner was placed in administrative 
segregation, no other reference was made 
to the nearly five years that elapsed be- 
tween petitioner's conviction and the fil- 
ing of the petition. Garner v. State, 2012 
Ark. 271, — S.W.3d — (2012). 



16-112-205. Hearing. 



RESEARCH REFERENCES 



ALR. Validity, Construction, and Appli- 
cation of State Statutes and Rules Gov- 



erning Requests for Postconviction DNA 
Testing. 72 A.L.R.6th 227. 



16-112-208. Testing procedures. 

RESEARCH REFERENCES 



ALR. Validity, Construction, and Appli- 
cation of State Statutes and Rules Gov- 



erning Requests for Postconviction DNA 
Testing. 72 A.L.R.6th 227. 



CASE NOTES 



Relief Properly Denied. 

Denial of appellant's, an inmate's, peti- 
tion for habeas corpus under §§ 16-112- 
201 to 16-112-208 was appropriate be- 
cause he had sought and received DNA 
testing, the results of which were incon- 
clusive and the Arkansas State Crime 



Laboratory did not have a duty to per- 
form, or direct to be performed, additional 
mitochondrial DNA testing under subsec- 
tion (b) of this section. Pitts v. State, 2011 
Ark. 322, — S.W.3d — (2011). 

Cited: Hill v. State, 2012 Ark. 204, — 
S.W.3d — (2012). 



16-114-201 PRACTICE, PROCEDURE, AND COURTS 

CHAPTER 114 
MALPRACTICE ACTIONS 



262 



Subchapter 2 — Actions for Medical Injury 



16-114-201. Definitions. 



CASE NOTES 



Medical Injury. 

Summary judgment was properly 
awarded to a hospital in an action by 
appellants for negligent credentialing of a 
surgeon because the Arkansas Medical 
Malpractice Act, subdivision (3) of this 
section, did not confer a cause of action for 



negligent credentialing as a "medical in- 
jury;" credentialing decisions did not in- 
volve a professional service, a doctor's 
treatment or order, or a matter of medical 
science related to specific patient care. 
Paulino v. QHG of Springdale, Inc., 2012 
Ark. 55, — S.W.3d — (2012). 



16-114-202. Applicability. 



CASE NOTES 



Medical Injury. 

Summary judgment was properly 
awarded to a hospital in an action by 
appellants for negligent credentialing of a 
surgeon because the Arkansas Medical 
Malpractice Act did not confer a cause of 
action for negligent credentialing as a 



"medical injury;" credentialing decisions 
did not involve a professional service, a 
doctor's treatment or order, or a matter of 
medical science related to specific patient 
care. Paulino v. QHG of Springdale, Inc., 
2012 Ark. 55, — S.W.3d — (2012). 



16-114-203. Statute of limitations. 



CASE NOTES 



Actions Not Barred. 

Trial court erred by disregarding a nunc 
pro tunc order entered in the probate 
court appointing appellants as co-special 
administrators, effective before the 
wrongful death action was filed, as: (1) the 
nunc pro tunc order gave appellants 
standing under § 16-62-102(b) to bring 
the wrongful death action; (2) the statute 
of limitations under subsection (a) of this 
section did not bar the wrongful death 



action; (3) by choosing to ignore the nunc 
pro tunc order, the trial court effectively 
invalidated the order, which was beyond 
its jurisdiction to do; and (4) the case did 
not involve the relation back doctrine un- 
der Ark. R. Civ. P. 15. Smith v. Rebsamen 
Med. Ctr., Inc., 2011 Ark. App. 722, — 
S.W.3d — (2011). 

Cited: Baylark v. Helena Reg! Med. 
Ctr., 2012 Ark. 405, — S.W.3d — , 2012 
Ark. LEXIS 446 (Nov. 1, 2012). 



263 



MALPRACTICE ACTIONS 



16-114-207 



16-114-206. Burden of proof. 

CASE NOTES 



Analysis 

Constitutionality. 
Expert Testimony. 
Informed Consent. 

Constitutionality. 

Because the language, "By means of 
expert testimony provided only by a medi- 
cal care provider of the same specialty as 
the defendant" in subsection (a) of this 
section adds requirements to Ark. R. Evid. 
702, attempts to dictate procedure, and 
invades the province of the judiciary's 
authority to set and control procedure, it 
violates the separation-of-powers doc- 
trine, Ark. Const. Amend. 80, § 3, and the 
inherent authority of the courts to protect 
the integrity of proceedings and the rights 
of the litigants. Broussard v. St. Edward 
Mercy Health Sys., 2012 Ark. 14, — 
S.W.3d — (2012). 

Expert Testimony. 

Trial court erred in ruling that § 16- 
114-207(3) was unconstitutional; the stat- 



ute simply created a privilege for purposes 
of trial. It gave medical care providers, or 
their representatives, the privilege to re- 
fuse to testify as to the matters set forth in 
this section. Bedell v. Williams, 2012 Ark. 
75, — S.W.3d — (2012). 

Informed Consent. 

Genuine issues of material fact re- 
mained as to whether a hospital was neg- 
ligent in failing to obtain a patient's in- 
formed consent for the administration of 
spinal-block anesthesia prior to surgery, 
because the patient signed a blank form, 
with no information as to the anesthesia 
to be used, while he was under the influ- 
ence of pain medication. Villines v. N. Ark. 
Regl Med. Ctr., 2011 Ark. App. 506, — 
S.W.3d — (2011), rehearing denied, — 
S.W.3d — , 2011 Ark. App. LEXIS 688 
(Ark. Ct. App. Oct. 26, 2011). 



16-114-207. Expert witnesses. 

CASE NOTES 



Analysis 

Constitutionality. 
Qualified to Testify. 

Constitutionality. 

Trial court erred in ruling that subdivi- 
sion (3) of this section was unconstitu- 
tional; the statute simply created a privi- 
lege for purposes of trial. It gave medical 
care providers, or their representatives, 
the privilege to refuse to testify as to the 
matters set forth in § 16-114-206. Bedell 
v. Williams, 2012 Ark. 75, — S.W.3d — 
(2012). 



Qualified to Testify. 

In a medical malpractice action against 
a nursing home, the court erred in ruling 
that subdivision (3) of this section did not 
apply to the nurses because they did not 
testify against themselves, but rather 
against their employer; only those medi- 
cal professionals employed by an entity, 
such as physicians and nurses, could be 
called upon to give expert medical testi- 
mony against the entity itself under the 
meaning of subdivision (3). Bedell v. Wil- 
liams, 2012 Ark. 75, — S.W3d — (2012). 






16-116-102 PRACTICE, PROCEDURE, AND COURTS 

CHAPTER 116 
PRODUCTS LIABILITY 



264 



Subchapter 1 — General Provisions 



16-116-102. Definitions. 



CASE NOTES 



Product Liability Action. 

Appellants' warrant claims were barred 
by the limitations period of the Arkansas 
Product Liability Act, § 16-116-103, in- 
stead of the limitations period of the Uni- 
form Commercial Code, § 4-2-725, be- 
cause a claim for the costs of repairing the 



buses with corroded flooring would be a 
claim for property damage within the 
meaning of the Act, under subdivision (5) 
of this section. IC Corp. v. Hoover Treated 
Wood Prods., 2011 Ark. App. 589, — 
S.W.3d — (2011). 



16-116-103. Limitation on actions. 



CASE NOTES 



Analysis 

Actions Barred. 
Breach of Warranty. 
Running of Statute. 

Actions Barred. 

Circuit court did not err in granting 
appellees' motion for summary on the 
ground that appellants' claims were 
barred by this section, the Arkansas Prod- 
uct Liability Act, because there was no 
genuine issue of material fact regarding 
appellants' awareness of corrosion prob- 
lems and its causal connection to alkaline 
copper quaternary (ACQ) and treated ply- 
wood more than three years before it filed 
its complaint; the statute of limitations 
could begin to run even though appellant 
could not have known the full extent of the 
damage caused by the ACQ, and the Act 
covered all of appellants' claims, including 
those based on warranty. IC Corp. v. 
Hoover Treated Wood Prods., 2011 Ark. 
App. 589, — S.W.3d — (2011). 



Breach of Warranty. 

Appellants' warrant claims were barred 
by the limitations period of the Arkansas 
Product Liability Act instead of the limi- 
tations period of the Uniform Commercial 
Code, § 4-2-725, because a claim for the 
costs of repairing the buses with corroded 
flooring would be a claim for property 
damage within the meaning of the Act, 
§ 16-116-102(5). IC Corp. v. Hoover 
Treated Wood Prods., 2011 Ark. App. 589, 
— S.W3d — (2011). 

Running of Statute. 

Court of appeals did not need to decide 
whether appellants' claims for "economic 
loss" were covered by the Uniform Com- 
mercial Code, § 4-2-725, instead of this 
section, the Arkansas Product Liability 
Act, because appellants failed to plead or 
present evidence as to its lost profits or 
lost goodwill, matters that had to be spe- 
cifically pled under Ark. R. Civ. P. 9(g). IC 
Corp. v. Hoover Treated Wood Prods., 2011 
Ark. App. 589, — S.W3d — (2011). 



265 



CIVIL RIGHTS 

CHAPTER 118 
MISCELLANEOUS ACTIONS 



16-123-101 



16-118-107. Civil action by crime victim. 

CASE NOTES 



Recovery Permitted. 

Plaintiff may recover under this section 
where (1) defendants made misrepresen- 
tations to plaintiffs with the intent of 
collecting the commitment fees; and (2) 
accepting the allegations in the Complaint 



as true, defendants received the commit- 
ment fees with the purpose of depriving 
plaintiff of its money. Terra Renewal, LLC 
v. McCarthy, — F. Supp. 2d — , 2012 U.S. 
Dist. LEXIS 94935 (E.D. Ark. July 10, 
2012). 



CHAPTER 123 
CIVIL RIGHTS 

Subchapter 1 — The Arkansas Civil Rights Act of 1993 



16-123-101. Title. 



CASE NOTES 



Analysis 



In General. 
Burden Shifting. 
Pretext. 

In General. 

College, which was a community col- 
lege, was an agency of the state and, thus, 
enjoyed Eleventh Amendment, U.S. 
Const. Amend. XI, sovereign immunity 
from the teacher's lawsuit against it alleg- 
ing race discrimination and retaliation 
claims for not renewing the teaching con- 
tract of the teacher. As a result, the teach- 
er's claims under Title V of the Americans 
with Disabilities Act, 42 U.S.C.S. § 12201 
et seq., 42 U.S.C.S. § 1981 and 42 
U.S.C.S. § 1983, and the Arkansas Civil 
Rights Act, § 16-123-101 et seq., had to be 
dismissed as claims against the state, but 
the teacher could still maintain an action 
under Title VII of the Civil Rights Act, 42 
U.S.C.S. § 2000e et seq. Reed v. College of 
the Ouachitas, — F. Supp. 2d — , 2012 
U.S. Dist. LEXIS 56227 (W.D. Ark. Apr. 
23, 2012). 

City was not entitled to summary judg- 
ment on employee's claim under the Ar- 
kansas Civil Rights Act, § 16-123-101 et 



seq., for failure to promote her on account 
of race, because the trial court failed to 
engage in the burden-shifting analysis 
required by McDonnell-Douglas. Addi- 
tionally, the trial court erred in character- 
izing her failure to promote claim as a 
constructive discharge claim. Brodie v. 
City of Jonesboro, 2012 Ark. 5, — S.W.3d 
— (2012). 

Burden Shifting. 

Summary judgment was improperly 
granted in a case alleging violations of the 
Americans with Disabilities Act and the 
Arkansas Civil Rights Act, §§16-123-101 
to -108, because the trial court should 
have used the McDonnell Douglas bur- 
den-shifting analysis and explained its 
findings. Johnson v. Windstream Com- 
muns., Inc., 2012 Ark. App. 590, — S.W.3d 
— , 2012 Ark. App. LEXIS 708 (Oct. 24, 
2012). 

Pretext. 

Terminated employee's race discrimina- 
tion claims failed because the employer 
stated that it discharged the employee for 
failing to follow a supervisor's directive, 
and the employee did not show pretext 
since nineteen youth care workers were 
not valid comparators because they had 



16-123-107 



PRACTICE, PROCEDURE, AND COURTS 



266 



different immediate supervisors from the 
employee and did not engage in the same 
conduct as the employee, and the employ- 
ee's allegations of shifting explanations 
amounted to nothing more than a seman- 



tic dispute as to whether the employer's 
ultimatum to resign or be fired was a 
resignation or a termination. Bone v. G4s 
Youth Servs., — F.3d — , 2012 U.S. App. 
LEXIS 15663 (8th Cir. July 30, 2012). 



16-123-107. Discrimination offenses. 



CASE NOTES 



Racial Discrimination. 

Employee's racial discrimination claim 
based on failure to promote failed because 
(1) the employer allegedly selected the 
other applicant based on, inter alia, expe- 
rience, interview answers, and connec- 
tions to government agencies, and (2) the 
employee failed to show pretext based on 
the employee's qualifications compared to 
the chosen applicant, false and shifting 
explanations for the decision, and other 
instances of discrimination. Barber v. CI 
Truck Driver Training, LLC, 656 F.3d 782 
(8th Cir. 2011). 

Employee's racial discrimination claim 
based on the employee's termination for 
insubordination failed because the em- 
ployee did not show pretext based on, 
inter alia, allegations regarding disparate 
disciplinary treatment of several other 
employees who were not similarly situ- 
ated, a supervisor's treatment of the em- 



ployee, and the employer's explanations 
for the decision. Barber v. CI Truck Driver 
Training, LLC, 656 F.3d 782 (8th Cir. 
2011). 

Plaintiff cardiologist's comparators 
were not similarly situated to him, and he 
failed to provide any evidence giving rise 
to an inference that a defendant hospital 
association, executive officer, and other 
doctors racially discriminated against him 
in violation of 42 U.S.C.S. § 1981 and the 
Arkansas Civil Rights Act, or conspired to 
discriminate against him in violation of 42 
U.S.C.S. §1985(3), when they revoked his 
hospital privileges based on plaintiffs be- 
havior toward hospital staff, his poor re- 
cord of patient care, and his failure to 
maintain proper medical records. Davis v. 
Jefferson Hosp. Ass'n, — F.3d — , 2012 
U.S. App. LEXIS 14243 (8th Cir. July 12, 
2012). 



16-123-108. Retaliation — Interference — Remedies. 



CASE NOTES 



Analysis 

Adverse Employment Action. 

Causal Link. 

Pretext. 

Supervisor. 

Adverse Employment Action. 

Retaliation claim filed by plaintiff, a 
new zoning official, against defendant city 
employer, failed because a written warn- 
ing did not threaten termination or any 
other employment-related harm, as the 
employee had suffered no loss of pay, re- 
duction in hours or responsibilities, or 
exclusion from other opportunities, and 
further, a prior discipline for similar mis- 
conduct weakened any inference that the 
warning was considered "materially ad- 



verse." Hill v. City of Pine Bluff, — F.3d — , 
2012 U.S. App. LEXIS 21256 (8th Cir. Oct. 
15, 2012). 

Causal Link. 

Assuming that plaintiff cardiologist en- 
gaged in protected conduct when he com- 
plained about other physicians' bias and 
racial discrimination to administrators, 
the only evidence for which was cited in 
his complaint, plaintiff failed to establish 
a causal connection between the com- 
plaint in 2005 and the ultimate revocation 
of his hospital privileges in 2007, and 
thus, his claim of retaliation under 42 
U.S.C.S. § 1981 and the Arkansas Civil 
Rights Act failed as a matter of law. Davis 
v. Jefferson Hosp. Ass'n, — F.3d — , 2012 
U.S. App. LEXIS 14243 (8th Cir. July 12, 
2012). 



267 



GENERAL PROVISIONS 



17-1-103 



Pretext. 

Employee's retaliation claim based on 
failure to promote and the employee's ter- 
mination for insubordination failed be- 
cause the employee did not show pretext 
since, inter alia, the proximity of the pro- 
motion decision to the employee's state- 
ment that the employee would file a dis- 
crimination charge if not promoted was 
not probative of pretext. Barber v. CI 
Truck Driver Training, LLC, 656 E3d 782 
(8th Cir. 2011). 

Supervisor. 

In a case involving the Arkansas Civil 
Rights Act, § 16-123-101 et seq., a default 
judgment was not set aside under Ark. R. 
Civ. P. 55 because a motion for an exten- 



sion was not timely where the request was 
not made to a trial court before the expi- 
ration of the period originally prescribed, 
the failure to respond in a timely manner 
due to one attorney being distracted by 
the birth of a child was not excusable 
neglect, an amendment to Ark. R. Civ. P. 
12 was inapplicable, and an argument 
that the complaint failed to state a claim 
was rejected. The denial of illegal intent 
was insufficient in a first affidavit, a sec- 
ond affidavit was filed after the default 
was granted, and an individual supervisor 
could have been held personally liable for 
alleged acts of retaliation under subsec- 
tion (a) of this section. Eusanio v. Tippin, 
2013 Ark. App. 38, — S.W.3d — , 2013 Ark. 
App. LEXIS 47 (Jan. 30, 2013). 



TITLE 17 

PROFESSIONS, OCCUPATIONS, AND 
BUSINESSES 

SUBTITLE 1. PROFESSIONS GENERALLY 

CHAPTER 1 
GENERAL PROVISIONS 

17-1-103. Registration, certification, and licensing for criminal 
offenders. 

CASE NOTES 



Attorney Discipline. 

Circuit court's order to dismiss the at- 
torney's conviction and to seal the record 
of the criminal proceeding was not bind- 
ing on the Arkansas Supreme Court for 
purposes of the disciplinary proceeding 
against the attorney because the court 



could not be bound by an expungement 
order made pursuant to a legislative en- 
actment when engaged in its constitu- 
tional mandate to regulate and discipline 
attorneys at law. Ligon v. Davis, 2012 Ark. 
440, — S.W.3d — , 2012 Ark. LEXIS 470 
(Nov. 29, 2012). 



17-11-403 PROFESSIONS, OCCUPATIONS, AND BUSINESSES 268 

SUBTITLE 2. NONMEDICAL PROFESSIONS 

CHAPTER 11 
ABSTRACTERS 

Subchapter 4 — Arkansas Abstracters' Board 

17-11-403. Duties and powers. 

A.C.R.C. Notes. Acts 2012, No. 47, § 3, private investigator to perform any inves- 

provided: "PROFESSIONAL FEES. The tigative task as needed or may be required 

appropriation made available in the Pro- by law. Abstracter Board members may 

fessional Fees Line Item of this Act shall not act as investigators nor do investiga- 

be made available to the board for the tive work required by the board." 
purpose of contracting an independent or 

CHAPTER 14 
APPRAISERS 

Subchapter 3 — Licensing Restrictions 

17-14-305. Compliance with uniform standards and code of 
ethics — Seals — Licensing and certification docu- 
ments. 

CASE NOTES 

Cited: Chandler v. Ark. Appraiser Li- 
censing & Certification Bd., 2011 Ark. 
519, — S.W.3d — (2011). 

CHAPTER 19 
BAIL BONDSMEN 

Subchapter 1 — General Provisions 

17-19-106. Professional Bail Bond Company and Professional 
Bail Bondsman Licensing Board. 

A.C.R.C. Notes. Acts 2012, No. 182, of its fund balance to the General Revenue 

§ 4, provided: "FUND TRANSFER. The Fund Account in the State Treasury. 

Professional Bail Bondsman Licensing "The provisions of this section shall be 

Board, at the end of each fiscal year, shall in effect only from July 1, 2012 through 

transfer all but twenty-five percent (25%) June 30, 2013." 



269 CONTRACTORS 17-25-101 

Subchapter 3 — Bond Requirements — Posting of Bondsmen List 
17-19-301. Premiums. 



A.C.R.C. Notes. Acts 2012, No. 255, 
§ 10, provides: "FEE GENERATION 
AND SUPPORT — BAIL BOND FEES. 
Unless specified otherwise in Arkansas 
Code §17- 19-30 1(e) the monies collected 
by each bail bond company under the 
authority of §17-19-301(e) shall be depos- 
ited into the State Treasury to the credit 
of the Public Defender User Fees Fund 
within the State Central Services Fund. 

"Of the fee collected by each licensed 
professional bail bond company, three dol- 
lars ($3.00) shall be transferred to the 
various Counties for the sole purpose of 
defraying the operating expenses of the 
local public defenders' office. The remain- 



ing monies collected shall be used to de- 
fray operating expenses of the Commis- 
sion. 

"On a quarterly basis, from the Bail 
Bond-County Public Defender line item, 
the Commission shall remit to each 
County its portion of the three dollars 
($3.00) per bail bond fee collected based 
upon the formula used for state aid for 
counties. This formula is as follows: 75% 
of the money is distributed equally to all 
75 Counties and the remaining 25% is 
distributed per capita. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 25 
CONTRACTORS 

Subchapter 1 — General Provisions 



17-25-101. Definition. 



CASE NOTES 






Contractor. 

Appellant excavating company fell un- 
der the definition of "contractor" as set 
forth in subdivision (a)(1) of this section, 
because the work described in the con- 
tracts at issue ~ demolition, fill work, cut 
work, excavation ~ was encompassed by 
at least one of the categories of the statute 
listed as construction, erection, alteration, 
demolition, or repair. Thus, § 17-25- 
103(d) was applicable and appellant was 
barred from enforcing the contracts be- 
cause appellant did not have a valid Ar- 
kansas contractor's license when it en- 
tered into the contracts. J & J Excavating 
v. Doyne Constr. Co., 2012 Ark. App. 142, 
— S.W.3d — (2012). 

Summary judgment dismissal of the 



contractor's suit was proper, because the 
contractor's construction of a natural-gas 
pipeline wherein space was leased fell 
squarely within the ambit of the statutory 
definition of contractor in subdivision 
(a)(1) of this section, and § 17-25-103(d) 
did not violate Ark. Const. Art. II, § 13, 
when the statute did not abrogate the 
right of all contractors to bring suit, but 
denied that right only to those contractors 
who did not possess a license; as designed 
to protect the public, the statute advanced 
the goal of providing an incentive for con- 
tractors to undergo the licensing process 
to ensure that the standards set by the 
licensing board were satisfied. Cent. Okla. 
Pipeline, Inc. v. Hawk Field Servs., LLC, 
2012 Ark. 157, — S.W.3d — (2012). 



17-25-103 PROFESSIONS, OCCUPATIONS, AND BUSINESSES 
17-25-103. Penalties — Enforcement. 

CASE NOTES 



270 



Analysis 

Applicability. 
Right to Sue. 

Applicability. 

Appellant excavating company fell un- 
der the definition of "contractor" as set 
forth in § 17-25-101(a)(l), because the 
work described in the contracts at issue — 
demolition, fill work, cut work, excavation 
~ was encompassed by at least one of the 
categories of the statute listed as con- 
struction, erection, alteration, demolition, 
or repair. Thus, subsection (d) of this sec- 
tion was applicable and appellant was 
barred from enforcing the contracts be- 
cause appellant did not have a valid Ar- 
kansas contractor's license when it en- 
tered into the contracts. J & J Excavating 
v. Doyne Constr. Co., 2012 Ark. App. 142, 
— S.W.3d — (2012). 



Right to Sue. 

Summary judgment dismissal of the 
contractor's suit was proper, because the 
contractor's construction of a natural-gas 
pipeline wherein space was leased fell 
squarely within the ambit of the statutory 
definition of contractor in § 17-25- 
101(a)(1), and subsection (d) of this sec- 
tion did not violate Ark. Const. Art. II, 
§ 13, when the statute did not abrogate 
the right of all contractors to bring suit, 
but denied that right only to those con- 
tractors who did not possess a license; as 
designed to protect the public, the statute 
advanced the goal of providing an incen- 
tive for contractors to undergo the licens- 
ing process to ensure that the standards 
set by the licensing board were satisfied. 
Cent. Okla. Pipeline, Inc. v. Hawk Field 
Servs., LLC, 2012 Ark. 157, — S.W.3d — 
(2012). 



Subchapter 3 — Licensing 

17-25-313. License requirements to accompany invitation to 
bid. 

CASE NOTES 



No Private Right of Action. 

Summary judgment dismissal of the 
contractor's suit was proper, because the 
contractor's construction of a natural-gas 
pipeline wherein space was leased fell 
squarely within the ambit of the statutory 
definition of contractor in § 17-25- 
101(a)(1), and § 17-25-103(d) did not vio- 
late Ark. Const. Art. II, § 13, when the 
statute did not abrogate the right of all 
contractors to bring suit, but denied that 
right only to those contractors who did not 
possess a license; to hold that a contractor 



could collect from an architect or engineer 
compensation that it could not otherwise 
recover would circumvent the clear intent 
of the statutory bar, thus, the Arkansas 
Supreme Court discerned no legislative 
intent for a private cause of action to arise 
under this section, and since there was no 
private right of action, it followed that a 
party could not be held vicariously liable 
for an alleged failure of its employees to 
give notice under the statute. Cent. Okla. 
Pipeline, Inc. v. Hawk Field Servs., LLC, 
2012 Ark. 157, — S.W.3d — (2012). 



271 PEST CONTROL SERVICES 17-37-210 

CHAPTER 29 

EMBALMERS, FUNERAL DIRECTORS, AND FUNERAL 

ESTABLISHMENTS 

Subchapter 2 — Embalmers and Funeral Directors Law — State 
Board of Embalmers and Funeral Directors 

17-29-211. Administrative activities. 

A.C.R.C. Notes. Acts 2012, No. 73, § 3, of the Burial Association Board Executive 

provided: "PERSONAL SERVICES. The Secretary, up to one-half (V2) of the salary 

Burial Association Board Executive Secre- of the Burial Association Board Adminis- 

tary and the Burial Association Board trative Specialist III, and the appropriate 

Administrative Specialist III shall also be matching. This sum shall be paid during 

responsible for the administrative activi- t h e first quarter of each fiscal year via 

ties of the State Board of Embalmers and f un( j transfer 

Funeral Directors. The State Board of « The provisions of this sect ion shall be 
Embalmers and Funeral Directors shall 
pay to the Burial Association Board an 
amount equal to one-half (¥2) of the salary 

CHAPTER 37 
PEST CONTROL SERVICES 

Subchapter 2 — Licensing 

17-37-210. Bond and insurance requirements. 

CASE NOTES 

Suit Against Surety Proper. Arkansas State Plant Board a bond issued 

Trial court erred in granting a surety's by the surety on the company's behalf, 

motion to dismiss a homeowner's com- Russenberger v. Thomas Pest Control, 

plaint pursuant to Ark. R. Civ. P. 12(b)(6) inc., 2012 Ark. App. 86, — S.W.3d — 

because the homeowner alleged that a (2012). 
pest control company furnished to the 



in effect only from July 1, 2012 through 
pay to the Burial Association Board an j une qq 90 13 " 



17-95-310 PROFESSIONS, OCCUPATIONS, AND BUSINESSES 272 

SUBTITLE 3. MEDICAL PROFESSIONS 

CHAPTER 95 
PHYSICIANS AND SURGEONS 

Subchapter 3 — Arkansas Medical Practices Act — Arkansas State 

Medical Board 

17-95-310. Medical Director of Arkansas State Medical Board — 
Qualifications. 

A.C.R.C. Notes. Acts 2012, No. 85, § 5, at least ten (10) years of full-time clinical 

provided: "DIRECTOR QUALIFICA- practice in direct patient care, five (5) 

TIONS AND LIMITATIONS. The Director years of which shall have been in full-time 

of the State Medical Board shall: clinical practice in direct patient care in 

"(a) have been in full-time clinical prac- the State of Arkansas; 

tice of medicine in direct patient care "(c) have not served on the Arkansas 

within one (1) year of filling the position of State Medical Board within the past five 

Medical Director; (5) years; and 

"(b) have fifteen (15) years of current "(d) have a comprehensive knowledge 

continuous full-time medical service im- of the contemporary, broad-based clinical 

mediately prior to the date of appointment practice of medicine with experience in 

which shall include, but not be limited to, direct patient care." 

Subchapter 4 — Arkansas Medical Practices Act — Licensing 

17-95-409. Denial, suspension, or revocation — Grounds. 

CASE NOTES 

Standing. established under §§ 6-81-715 to 6-81- 

Doctor who had allowed his Arkansas 717, because the Declaratory Judgment 

medical license to lapse did not have Statute, § 16-111-101 et seq., was appli- 

standing to obtain a judgment declaring cable only where there was a present 

that subsection (b) of this section did not actual controversy. Nelson v. Ark. Rural 

apply to contracts under the Community Med. Practice Loan & Scholarship Bd., 

Match Loan and Scholarship Program, 2011 Ark. 491, — S.W.3d — (2011). 

17-95-410. Denial, suspension, or revocation — Proceedings. 

RESEARCH REFERENCES 

ALR. Pretrial Discovery in Disciplinary 
Proceedings Against Physician. 65 
A.L.R.6th 295. 



273 SPEECH-LANGUAGE PATHOLOGISTS, ETC. 17-100-202 

CHAPTER 97 
PSYCHOLOGISTS AND PSYCHOLOGICAL EXAMINERS 



Subchapter 3 — Licensing 



17-97-309. Fees. 



A.C.R.C. Notes. Acts 2012, No. 219, 
§ 17, provided: "AUTISM TREATMENT 
AND COORDINATION. The Department 
of Human Services — Division of Devel- 
opmental Disabilities Services shall pro- 
mulgate rules and regulations regarding 
the licensure and oversight of Applied 
Behavior Analysts as described in Arkan- 



sas Code § 23-99-418. The rules and regu- 
lations shall include a requirement for a 
licensure application fee equal to that 
charged to applicants to be licensed as a 
psychologist as described in Arkansas 
Code § 17-97-309. Proceeds from this fee 
are declared as cash funds." 



CHAPTER 100 

SPEECH-LANGUAGE PATHOLOGISTS AND 
AUDIOLOGISTS 

Subchapter 2 — Board of Examiners in Speech-Language Pathology 

and audiology 



17-100-202. Powers and duties. 

A.C.R.C. Notes. Acts 2012, No. 35, § 4, 
provided: "INVESTIGATOR. The Board of 
Examiners in Speech-Language Pathol- 
ogy and Audiology shall contract with an 
outside investigator, as needed, to perform 
investigations and conduct inspections of 
alleged wrongdoing. The duties of the in- 
vestigator hired shall include, but not be 
limited to, investigation and inspection of 
all complaints as determined by the 



Board, to determine whether or not any 
persons have 

"(1) Practiced their profession in such a 
way as to endanger the general health and 
welfare of the public; or 

"(2) Otherwise violated the practice act 
or rules and regulations of the Speech- 
Language Pathology and Audiology 
Board." 



TITLE 18 
PROPERTY 



SUBTITLE 4. MORTGAGES AND LIENS 

CHAPTER. 

48. MISCELLANEOUS LIENS ON PERSONAL PROPERTY. 
50. STATUTORY FORECLOSURES. 



18-11-102 PROPERTY 

SUBTITLE 2. REAL PROPERTY 



274 



CHAPTER 11 
REAL PROPERTY INTERESTS GENERALLY 

Subchapter 1 — Ownership and Possession 

18-11-102. Payment of taxes on unimproved or unenclosed land 
deemed possession. 

CASE NOTES 



Possession. 

Trial court's conclusions that an adjoin- 
ing landowner claimed land as its own 
and that it was the owner of the land by 
adverse possession were not erroneous 
because a witness's affidavit established 
that, since the early 1900s, the adjoining 
landowner paid taxes on the land, har- 



vested timber, maintained boundary lines, 
leased the land, and restricted access to 
the land; no one ever claimed ownership of 
the property or objected to any of the acts 
or dominion of the adjoining landowner 
until a property owner filed his quiet title 
complaint. Dye v. Anderson Tully Co., 
2011 Ark. App. 503, — S.W.3d — (2011). 



18-11-103. Payment of taxes on wild and unimproved land — 
Presumption of color of title. 



CASE NOTES 



Possession. 

Trial court's conclusions that an adjoin- 
ing landowner claimed land as its own 
and that it was the owner of the land by 
adverse possession were not erroneous 
because a witness's affidavit established 
that, since the early 1900s, the adjoining 
landowner paid taxes on the land, har- 

18-11-106. Adverse possession. 



vested timber, maintained boundary lines, 
leased the land, and restricted access to 
the land; no one ever claimed ownership of 
the property or objected to any of the acts 
or dominion of the adjoining landowner 
until a property owner filed his quiet title 
complaint. Dye v. Anderson Tully Co., 
2011 Ark. App. 503, — S.W.3d — (2011). 



CASE NOTES 



Analysis 

Adverse Possession Not Shown. 
Adverse Possession Shown. 
Statutory Proof Not Applicable. 

Adverse Possession Not Shown. 

One appellant testified that he owned 
and paid the taxes on property contiguous 
to the land in dispute and he was in 
possession of land lying north of fence 
through a pond, and further that he 
cleared and maintained that property, but 
the evidence supported appellees' position 



that the use of the property by appellants 
and their predecessors was permissive 
prior to a survey being completed, and 
until that survey was done, there was 
little evidence that appellees received no- 
tice of an adverse use; the finding that 
appellants did not establish adverse pos- 
session was not clearly erroneous. Horton 
v. Taylor, 2012 Ark. App. 469, — S.W.3d — 
(2012). 

Adverse Possession Shown. 

Appellee proved an adverse possession 
claim as he showed he began exclusively 



275 



CONVEYANCES 



18-12-601 



using a property with hostile intent that 
was understood by his co-tenants, more 
than seven years before 1995, and there- 
fore, his claim vested before this section 
became effective as even though appellee 
did not live on the property for the entire 
time since his mother had died, everyone 
who had lived on the property since that 
time had done so with appellee's permis- 
sion, and appellee used the property as his 
own and threatened his co-tenants. Sut- 
ton v. Gardner, 2011 Ark. App. 737, — 
S.W.3d — (2011). 

Statutory Proof Not Applicable. 

Although appellant argued appellee did 
not prove an adverse possession claim 



under this section, contending that appel- 
lee failed to show she paid the taxes on the 
subject property, a trial court properly 
found appellee's adverse possession claim 
vested in 1973, prior to the enactment of 
the additional statutory requirements in 
this section, including payment of taxes, 
and because the additional statutory ele- 
ments were not applied retroactively, ap- 
pellee was not subject to the statute's 
additional requirements. Smith v. Smith, 
2011 Ark. App. 598, — S.W.3d — (2011). 

Cited: Dohle v. Duffield, 2012 Ark. App. 
217, — S.W.3d — (2012). 



CHAPTER 12 
CONVEYANCES 

Subchapter 6 — Miscellaneous Conveyances 

18-12-601. After-acquired title. 

CASE NOTES 



Analysis 

Mineral Rights. 

Oil, Gas, and Mineral Rights. 

Mineral Rights. 

This section did not convey plaintiffs 
the mineral rights they alleged they ob- 
tained from defendant two in 2003, which 
had been conveyed to defendant two by 
defendant one in 1997, when the rights 
were conveyed to defendant one in 2004 as 
the deeds had been reformed deeds and 
related back to their original execution, 
and there was no mineral title to pass 
under this section. Mauldin v. Snowden, 
2011 Ark. App. 630, — S.W.3d — (2011). 



Oil, Gas, and Mineral Rights. 

Ruling in favor of a corporation that the 
decedent's wife did not hold title to the 
land or mineral rights at issue was proper 
because she possessed only a dower inter- 
est at the time of the 1986 deed and the 
after-acquired title doctrine barred her 
from asserting a claim to the property 
under subsection (a) of this section. At 
most, she had only a dower interest in the 
oil, gas, and mineral rights reserved by 
her husband in the 1986 deed and even if 
the deed had specifically limited her con- 
veyance to her actual interest at the time, 
that interest was inchoate when the deed 
was executed. Evans v. SEECO, Inc., 2011 
Ark. App. 739 (2011). 






18-15-201 PROPERTY 276 

CHAPTER 15 
EMINENT DOMAIN 

Subchapter 2 — Counties and Municipal Corporations Generally 

18-15-201. Power to condemn for parks, boulevards, and public 
buildings — Improvement districts. 

CASE NOTES 

Appeal. not a final, appealable order. The con- 
In an eminent domain case in which an struction of a bicycle trail would not ren- 
order of immediate possession was der it impossible to restore his property to 
granted, because the issue of just compen- its previous condition. Thomas v. City of 
sation remained to be determined, the Fayetteville, 2012 Ark. 120 (2012). 
order granting immediate possession was 

Subchapter 3 — Municipal Corporations Generally 

18-15-303. Municipal corporations — Power to condemn — Pro- 
ceedings — Controversy. 

CASE NOTES 

Appeal. not a final, appealable order. The con- 
In an eminent domain case in which an struction of a bicycle trail would not ren- 
order of immediate possession was der it impossible to restore his property to 
granted, because the issue of just compen- its previous condition. Thomas v. City of 
sation remained to be determined, the Fayetteville, 2012 Ark. 120 (2012). 
order granting immediate possession was 

Subchapter 6 — Municipal Corporations — Water and Water- 
Generated Electric Companies 

18-15-605. Damages — Deposits. 

CASE NOTES 

Attorney's Fees. tion applied only to municipal corpora- 
Trial court erred in awarding attorney's tions and other corporations that supplied 
fees to a lessee in an airport eminent water to cities, towns, or rural areas, 
domain proceeding brought under § . 14- Delta Reg^ Airport Auth. v. Gunn, 2011 
362-120 because subsection (b) of this sec- Ark. App. 701, — S.W.3d — (2011). 



277 



MORTGAGES 18-40-102 

SUBTITLE 3. PERSONAL PROPERTY 



CHAPTER 28 
UNCLAIMED PROPERTY 

Subchapter 2 — Unclaimed Property Act 



18-28-213. Deposit of funds. 

A.C.R.C. Notes. Acts 2012, No. 213, 
§ 10, provided: "FUND TRANSFER. On 
the effective date of this Act and notwith- 
standing the provisions of A.C.A. § 18-28- 
213 (c)(2) regarding the transfer of funds 
from the Unclaimed Property Proceeds 
Trust Fund to the general revenues of the 
state, the Auditor of State shall transfer 
on his books and those of the State Trea- 
surer and the Chief Fiscal Officer of the 
State, the sum of one million dollars 
($1,000,000) from the Unclaimed Property 
Proceeds Trust Fund to the State Central 
Services Fund as a direct revenue for the 
Auditor of State to be used exclusively for 
grants to implement a statewide En- 
hanced 9-1-1 System." 

Acts 2012, Nos. 271 and 287, § 8, pro- 
vided: "FUND TRANSFER. Immediately 
upon the effective date of this Act, and 
notwithstanding the provisions of A.C.A. 
18-28-213 (c)(2) regarding the transfer of 
funds from the Unclaimed Property Pro- 
ceeds Trust Fund to the general revenues 
of the state, the Auditor of State shall 
transfer on his or her books and those of 



the State Treasurer and the Chief Fiscal 
Officer of State the sum of one million five 
hundred thousand dollars ($1,500,000) 
from the Unclaimed Property Proceeds 
Trust Fund to the Mid-South Community 
College Fund to be expensed from the 
Arkansas Delta Training and Education 
Consortium, the Arkansas Delta Training 
and Education Consortium Partners, and 
the University Center Partners appro- 
priations." 

Acts 2012, Nos. 271 and 287, § 9, pro- 
vided: "FUND TRANSFER. Immediately 
upon the effective date of this Act, and 
notwithstanding the provisions of A.C.A. 
18-28-213 (c)(2) regarding the transfer of 
funds from the Unclaimed Property Pro- 
ceeds Trust Fund to the general revenues 
of the state, the Auditor of State shall 
transfer on his or her books and those of 
the State Treasurer and the Chief Fiscal 
Officer of State the sum of one million 
dollars ($1,000,000) from the Unclaimed 
Property Proceeds Trust Fund to the 
Higher Education Grants Fund Account to 
provide additional funding for scholar- 
ships." 



SUBTITLE 4. MORTGAGES AND LIENS 

CHAPTER 40 
MORTGAGES 

18-40-102. Lien attaches when recorded. 

CASE NOTES 



Mistake in Record. 

Under this section, a creditor bank's 
recorded mortgage did not put a bona fide 
purchaser on constructive notice because 
it was not possible to tell exactly what 



land was being described, thus, Chapter 
12 debtors in possession could avoid the 
lien under 11 U.S.C.S. § 544(a)(3). Caine 
v. First State Bank (In re Caine), 462 B.R. 
688 (Bankr. W.D. Ark. 2011). 



18-44-110 PROPERTY 

CHAPTER 44 
MECHANICS' AND MATERIALMEN'S LIENS 

Subchapter 1 — General Provisions 



278 



18-44-110. Preference over prior liens — Exception. 

CASE NOTES 



Commencement of Improvement. 

Trial court erred in finding that con- 
struction on a project did not commence 
until after the filing of the lender's mort- 
gage by considering the parties' intent; 
under subdivision (a)(2) of this section, 
the trial court should have considered 



whether there was a visible manifestation 
of activity on the property that would 
show that construction had begun or 
would soon begin. May Constr. Co. v. Town 
Creek Constr. & Dev., LLC, 2011 Ark. 281, 
— S.W.3d — (2011). 



18-44-115. Notice to owner by contractor. 

CASE NOTES 



Strict Compliance. 

Lien notice did not comply with this 
section, because strict compliance with 
the notice requirements of this section 
was required, and the description of work 
done simply tracked the language of sub- 
division (e)(2)(C)(i), and in no way actu- 
ally described the labor and materials 



18-44-123. Parties to suits. 



provided by the claimant; the claimant 
merely stated that the lien notice was 
being provided in connection with sums 
owed and unpaid for labor and materials 
provided in connection with the proper- 
ties. Ground Zero Constr., Inc. v. Creek, 
2012 Ark. 243, — S.W.3d — (2012). 



CASE NOTES 



Contractors. 

United States' motion to dismiss plain- 
tiffs' claims for breach of contract and 
enforcement of its materialman's lien was 
granted in part because it had not waived 
its sovereign immunity, and thus, it had to 
be dismissed with prejudice from the ac- 
tion. However, dismissing the United 
States from the lawsuit did not necessar- 
ily result in a dismissal of plaintiffs lien 



claims, as plaintiff was not required to 
make the United States, the owner and 
lessor of the subject property, a party to its 
lawsuit in order to perfect its lien interest 
and recover against defendant lessees' 
leasehold estate under this section. Den- 
nis Allen Constr. Co. v. Sec'y of Army 
Corps of Eng'rs, — F. Supp. 2d — , 2012 
U.S. Dist. LEXIS 107966 (W.D. Ark. Aug. 
2, 2012). 



279 MISCELLANEOUS LIENS ON PERSONAL PROPERTY 18-48-805 

CHAPTER 47 
FEDERAL LIENS 

Subchapter 2 — Uniform Federal Lien Registration Act 

18-47-202. Place of filing. 

CASE NOTES 

Bankruptcy. 6323(f)(2)(B) eliminated the need for the 
Bankruptcy court denied Chapter 13 IRS to file tax liens in every location to 
debtors' objection to a secured claim the which a taxpayer might move by creating 
Internal Revenue Service ("IRS") filed a fiction and deeming the property situ- 
against their bankruptcy estate that was ated at the location where the property 
based on the debtors' argument that the was located when the lien was filed, and 
IRS did not have a secured claim against the IRS complied with subdivision (c)(4) of 
personal property they owned because it this section when it filed its lien in Mis- 
filed a lien under 26 U.S.C.S. § 6323 in sissippi County because the male debtor 
Mississippi County, Arkansas, and the lived in Mississippi County at the time the 
debtors had moved the property to Cle- lien was filed. In re Chitmon, 475 B.R. 689 
burne County, Arkansas. Section (Bankr. E.D. Ark. 2012). 

CHAPTER 48 
MISCELLANEOUS LIENS ON PERSONAL PROPERTY 



subchapter. 
8. — Principal Broker Real Estate Lien Act. 

Subchapter 8 — Principal Broker Real Estate Lien Act 

section. 

18-48-805. Notice of claim of lien against 
proceeds. 

18-48-805. Notice of claim of lien against proceeds. 

(a) A notice of claim of lien against proceeds shall state: 

(1) The name, address, and telephone number of the principal 
broker; 

(2) The date of the representation agreement; 

(3) The name of the owner of the commercial real estate; 

(4) The legal description of the commercial real estate as described in 
the representation agreement; 

(5) The amount of the claimed lien expressed as either a specified 
sum, a percentage of the sales price, or a formula; 

(6) The real estate license number of the principal broker; 

(7) That the lien claimant has read the notice of claim of lien, knows 
its contents, and believes: 

(A) The statements contained in the notice of claim of lien to be 
true and correct; and 



18-50-102 



PROPERTY 



280 



(B) That the claim is made pursuant to a valid representation 
agreement and is not frivolous; and 

(8) That the information contained in the notice of claim of lien is 
true and accurate to the knowledge of the signatory. 

(b) The notice of claim of lien against proceeds shall be notarized. 

(c) A copy of the representation agreement shall be attached to the 
notice of claim of lien against proceeds. 



History. Acts 2005, No. 1944, § 1; 
2011, No. 340, § 1. 

Publisher's Notes. This section is be- 
ing set out to reflect a correction in the 
2011 supplement. 



Amendments. The 2011 amendment 
substituted "principal broker" for "li- 
censee" in (a)(1) and (6). 



CHAPTER 50 
STATUTORY FORECLOSURES 

SECTION. 

18-50-107. Manner of sale. 

18-50-102. Parties authorized to foreclose mortgage or deed of 
trust. 

CASE NOTES 



Analysis 

In General. 
Mortgagees. 

In General. 

Arkansas Statutory Foreclosure Act in 
subdivision (a)(2) of this section provides 
that a bank may be authorized to do 
business in Arkansas either by state or 
federal law; the Wingo Act, § 4-27-1501 et 
seq., specifies that a foreign corporation 
may obtain authority to transact business 
in Arkansas by obtaining a certificate 
from the Arkansas Secretary of State; and 
the Arkansas banking statutes provide 
that in some instances an out-of-state 
bank must obtain a certificate from the 
Arkansas Bank Commissioner. JPMorgan 
Chase Bank, N.A. v. Johnson, 470 B.R. 
829 (Bankr. E.D. Ark. 2012). 



Mortgagees. 

Section 18-50-117 required nonresident 
mortgagee to be authorized to do business 
in Arkansas, and noncompliance was not 
cured by an attorney-in-fact under this 
section, not superseded by Ark. Code Ann. 
§ 4-27-101 et seq., and not preempted by 
12 U.S.C.S. § 24 and 371 of the National 
Banking Act. Attorney's fees were 
awarded under § 16-22-308. In re John- 
son, 460 B.R. 234 (Bankr. E.D. Ark. 2011). 

National banking association was au- 
thorized to avail itself of the Arkansas 
Statutory Foreclosure Act even though it 
was not registered with the Arkansas Sec- 
retary of State where it was chartered by 
the Office of the Comptroller of the Cur- 
rency, and as such, it was authorized to do 
business within the state by virtue of 
§ 18-50-117. JPMorgan Chase Bank, N.A. 
v. Johnson, 470 B.R. 829 (Bankr. E.D. Ark. 
2012). 



18-50-107. Manner of sale. 

(a) The sale shall be held on the date and at the time and place 
designated in the notice of default and intention to sell, except that the 
sale shall: 

(1) Be held between 9:00 a.m. and 4:00 p.m.; 



281 STATUTORY FORECLOSURES 18-50-107 

(2) Be held either at the premises of the trust property or at the front 
door of the county courthouse of the county in which the trust property 
is situated; and 

(3) Not be held on a Saturday, Sunday, or a legal holiday. 
(b)(1)(A) Any person, including the mortgagee and the beneficiary, 
may bid at the sale. 

(B) The trustee may bid for the beneficiary but not for himself or 
herself. 

(2) The mortgagee or trustee shall engage a third party that is 
licensed to sell real estate under the Real Estate License Law, § 17- 
42-101 et seq., and licensed to act as an auctioneer under the Auction- 
eer's Licensing Act, § 17-17-101 et seq., to conduct the sale and act at 
the sale as the auctioneer. 

(3) No bid shall be accepted that is less than two-thirds (%) of the 
entire indebtedness due at the date of sale. 

(c)(1) The person conducting the sale may postpone the sale from 
time to time. 
(2)(A) In every such case, notice of postponement shall be given by: 

(i) Public proclamation thereof by that person; or 

(ii) Written notice of postponement posted at the time and place 
last appointed for the sale. 

(B)(i) No other notice of the postponement need be given unless the 
sale is postponed for longer than thirty (30) days beyond the date 
designated in the notice. 

(ii) In that event, notice thereof shall be given pursuant to § 18- 
50-104. 

(d) The sale is concluded when the highest bid is accepted by the 
person conducting the sale. 

(e)(1) Unless otherwise agreed to by the trustee or mortgagee, the 
purchaser shall pay at the time of sale the price bid. 

(2) Interest shall accrue on any unpaid balance of the price bid at the 
rate specified in the note secured by the mortgage or deed of trust. 

(3) Within ten (10) days after the sale, the mortgagee or trustee shall 
execute and deliver the trustee's deed or mortgagee's deed to the 
purchaser. 

(4) The mortgagee or beneficiary shall receive a credit on its bid for: 

(A) The amount representing the unpaid principal owed; 

(B) Accrued interest as of the date of the sale; 

(C) Advances for the payment of taxes, insurance, and mainte- 
nance of the trust property; and 

(D) Costs of the sale, including reasonable trustee's and attorney's 
fees. 

(f)(1) The purchaser at the sale shall be entitled to immediate 
possession of the property. 
(2)(A) Possession may be obtained by filing a complaint in the circuit 
court of the county in which the property is situated and attaching a 
copy of the recorded trustee's or mortgagee's deed, whereupon the 
purchaser shall be entitled to an ex parte writ of assistance. 






18-50-117 PROPERTY 282 

(B) Alternatively, the purchaser may bring an action for forcible 
entry and detainer under § 18-60-301 et seq. 

(C) In either event, the provisions of § 18-50- 116(d) shall apply. 

History. Acts 1987, No. 53, § 7; 1999, The 2011 amendment by No. 901 in- 

No. 983, §§ 6, 7; 2011, No. 885, § 4; 2011, serted "that is licensed to sell real estate 

No. 901, § 3. under the Real Estate License Law, § 17- 

Publisher's Notes. This section is be- 42-101 et seq., and licensed to act as an 

ing set out to reflect a correction to the auctioneer under the Auctioneer's Licens- 

2011 amendment note by No. 901. ing Act> § 17.17.101 et seq." in (b)(2); 

Amendments. The 2011 amendment inse rted present (d) and redesignated the 

by No. 885 inserted present (d) and redes- rema i n ing subsections accordingly; and 

ignated the remaining subsections accord- substituted « is situ ated" for "lies" in pres- 

ingly; and substituted is situated for , /a/- OV a^ 

"lies" in present (f)(2)(A). ent WW * A >- 

18-50-117. Foreign corporations and other entities. 

CASE NOTES 

Mortgagees. National banking association was au- 
This section required nonresident mort- thorized to avail itself of the Arkansas 
gagee to be authorized to do business in Statutory Foreclosure Act even though it 
Arkansas, and noncompliance was not was not registered with the Arkansas Sec- 
cured by an attorney-in-fact under § 18- retary of State where it was chartered by 
50-102, not superseded by § 4-27-101 et the Office of the Comptroller of the Cur- 
seq., and not preempted by 12 U.S.C.S. rency, and as such, it was authorized to do 
§ 24 and 371 of the National Banking Act. business within the state by virtue of this 
Attorney's fees were awarded under § 16- section. JPMorgan Chase Bank, N.A. v. 
22-308. In re Johnson, 460 B.R. 234 Johnson, 470 B.R. 829 (Bankr. E.D. Ark. 
(Bankr. E.D. Ark. 2011). 2012). 

SUBTITLE 5. CIVIL ACTIONS 

CHAPTER 60 

MISCELLANEOUS PROCEEDINGS RELATING TO 

PROPERTY 

Subchapter 2 — Ejectment and Trespass 

18-60-201. Right of action generally. 

CASE NOTES 

Title to Support Ejectment. in conjunction with the trial court's deter- 

Trial court did not err in dismissing mination that appellees had a valid quiet 

appellants' ejectment claim under this title. Davis v. Gillam, 2011 Ark. App. 744 

section because the claim could not stand (2011). 






283 ACCOUNTING AND BUDGETARY PROCEDURES 19-4-522 

Subchapter 5 — Quieting Title Generally 

18-60-503. Publication of notice — Cancellation of liens. 

CASE NOTES 

Compliance. in appellees' quiet title action, the notice 

Although appellants claimed the notice requirements were satisfied because ap- 

requirement with this section was not pellants were the record owners of the 

complied with, and the circuit court did land and were a party to the action. Davis 

not have jurisdiction to enter a judgment v. Gillam, 2011 Ark. App. 744 (2011). 

CHAPTER 61 
STATUTES OF LIMITATIONS 

18-61-101. Actions to recover land, tenements, or heredita- 
ments. 

CASE NOTES 

Counterclaim. did not affect the statute of limitations, 
Appellee's counterclaim for quiet title which had not begun to run on the quiet 
was not barred by § 16-56- 126(a)(1) as a title claim as appellee was still in posses- 
prior court did not treat appellee's affir- sion of the property. Sutton v. Gardner, 
mative defense of adverse possession as a 2011 Ark. App. 737, — S.W.3d — (2011). 
counterclaim under subsection (a) of this Cited: Dohlev. Duffield, 2012 Ark. App. 
section, and the nonsuit of the prior action 217, — S.W.3d — (2012). 

TITLE 19 
PUBLIC FINANCE 

CHAPTER. 

5. REVENUE STABILIZATION LAW. 

6. REVENUE CLASSIFICATION LAW. 

CHAPTER 4 
STATE ACCOUNTING AND BUDGETARY PROCEDURES 

Subchapter 5 — Financial Management System 

19-4-522. Maintenance and general operation. 

A.C.R.C. Notes. Acts 2012, No. 52, § 9, "TRANSFERS OF APPROPRIATIONS, 

provided: "TRANSFER RESTRICTIONS. In the event the amount of any of the 

The appropriations provided in this act budget classifications of maintenance and 

shall not be transferred under the provi- general operation in this act are found by 

sions of Arkansas Code 19-4-522, but only the administrative head of the agency to 

as provided by this act." be inadequate, then the agency head may 

Acts 2012, No. 52, § 10, provided: request, upon forms provided for such 



19-4-522 



PUBLIC FINANCE 



284 



purpose by the Chief Fiscal Officer of the 
State, a modification of the amounts of the 
budget classification. In that event, he 
shall set out on the forms the particular 
classifications for which he is requesting 
an increase or decrease, the amounts 
thereof, and his reasons therefor. In no 
event shall the total amount of the budget 
exceed either the amount of the appro- 
priation or the amount of the funds avail- 
able, nor shall any transfer be made from 
the capital outlay or data processing sub- 
classifications unless specific authority for 
such transfers is provided by law, except 
for transfers from capital outlay to data 
processing when determined by the De- 
partment of Information Systems that 
data processing services for a state agency 
can be performed on a more cost-efficient 
basis by the Department of Information 
Systems than through the purchase of 
data processing equipment by that state 
agency. In considering the proposed modi- 
fication as prepared and submitted by 
each state agency, the Chief Fiscal Officer 
of the State shall make such studies as he 
deems necessary. The Chief Fiscal Officer 
of the State shall, after obtaining the 
approval of the Legislative Council, ap- 
prove the requested transfer if in his opin- 
ion it is in the best interest of the state. 

"Upon determination by the Director of 
the Department of Human Services that a 
Reallocation of Resources is necessary for 
the effective operation of the Medicaid 
Expansion Program Grants, the director, 
with the approval of the Governor, shall 
have the authority to request from the 
Chief Fiscal Officer of the State a transfer 
of Appropriation. This transfer authority 
applies only to Section 5 Medicaid Expan- 
sion Program Grants of this Act between 
Hospital and Medical Services Item (01) 
and Prescription Drugs Item (02). The 
limitation restrictions applicable to the 
Department Reallocation of Resources au- 
thority applies to this section. 

"The General Assembly has determined 
that the agency in this act could be oper- 
ated more efficiently if some flexibility is 
given to that agency and that flexibility is 
being accomplished by providing author- 
ity to transfer between certain items of 
appropriation made by this act. Since the 
General Assembly has granted the agency 
broad powers under the transfer of appro- 
priations, it is both necessary and appro- 
priate that the General Assembly main- 



tain oversight of the utilization of the 
transfers by requiring prior approval of 
the Legislative Council in the utilization 
of the transfer authority. Therefore, the 
requirement of approval by the Legisla- 
tive Council is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council is ruled unconsti- 
tutional by a court jurisdiction, this entire 
section is void." 

Acts 2012, No. 87, § 4, provided: 
"TRANSFER RESTRICTIONS. The ap- 
propriations provided in this act shall not 
be transferred under the provisions of 
Arkansas Code 19-4-522, but only as pro- 
vided by this act. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 87, § 5, provided: 
"TRANSFERS OF APPROPRIATIONS. 
In the event the amount of any of the 
budget classifications of maintenance and 
general operation in this act are found by 
the administrative head of the agency to 
be inadequate, then the agency head may 
request, upon forms provided for such 
purpose by the Chief Fiscal Officer of the 
State, a modification of the amounts of the 
budget classification. In that event, he 
shall set out on the forms the particular 
classifications for which he is requesting 
an increase or decrease, the amounts 
thereof, and his reasons therefor. In no 
event shall the total amount of the budget 
exceed either the amount of the appro- 
priation or the amount of the funds avail- 
able, nor shall any transfer be made from 
the capital outlay or data processing sub- 
classifications unless specific authority for 
such transfers is provided by law, except 
for transfers from capital outlay to data 
processing when determined by the De- 
partment of Information Systems that 
data processing services for a state agency 
can be performed on a more cost-efficient 
basis by the Department of Information 
Systems than through the purchase of 
data processing equipment by that state 
agency. In considering the proposed modi- 
fication as prepared and submitted by 
each state agency, the Chief Fiscal Officer 
of the State shall make such studies as he 
deems necessary. The Chief Fiscal Officer 
of the State shall, after obtaining the 
approval of the Legislative Council, ap- 
prove the requested transfer if in his opin- 
ion it is in the best interest of the state. 



285 



ACCOUNTING AND BUDGETARY PROCEDURES 



19-4-522 



"The General Assembly has determined 
that the agency in this act could be oper- 
ated more efficiently if some flexibility is 
given to that agency and that flexibility is 
being accomplished by providing author- 
ity to transfer between certain items of 
appropriation made by this act. Since the 
General Assembly has granted the agency 
broad powers under the transfer of appro- 
priations, it is both necessary and appro- 
priate that the General Assembly main- 
tain oversight of the utilization of the 
transfers by requiring prior approval of 
the Legislative Council in the utilization 
of the transfer authority. Therefore, the 
requirement of approval by the Legisla- 
tive Council is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council is ruled unconsti- 
tutional by a court of competent jurisdic- 
tion, this entire section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 217, § 5, provided: 
"TRANSFERS OF APPROPRIATIONS. 
In the event the amount of any of the 
budget classifications of maintenance and 
general operation in this act are found by 
the administrative head of the agency to 
be inadequate, then the agency head may 
request, upon forms provided for such 
purpose by the Chief Fiscal Officer of the 
State, a modification of the amounts of the 
budget classification. In that event, he 
shall set out on the forms the particular 
classifications for which he is requesting 
an increase or decrease, the amounts 
thereof, and his reasons therefor. In no 
event shall the total amount of the budget 
exceed either the amount of the appro- 
priation or the amount of the funds avail- 
able, nor shall any transfer be made from 
the capital outlay or data processing sub- 
classifications unless specific authority for 
such transfers is provided by law, except 
for transfers from capital outlay to data 
processing when determined by the De- 
partment of Information Systems that 
data processing services for a state agency 
can be performed on a more cost-efficient 
basis by the Department of Information 
Systems than through the purchase of 
data processing equipment by that state 
agency. In considering the proposed modi- 
fication as prepared and submitted by 
each state agency, the Chief Fiscal Officer 
of the State shall make such studies as he 



deems necessary. The Chief Fiscal Officer 
of the State shall, after obtaining the 
approval of the Legislative Council, ap- 
prove the requested transfer if in his opin- 
ion it is in the best interest of the state. 

"The General Assembly has determined 
that the agency in this act could be oper- 
ated more efficiently if some flexibility is 
given to that agency and that flexibility is 
being accomplished by providing author- 
ity to transfer between certain items of 
appropriation made by this act. Since the 
General Assembly has granted the agency 
broad powers under the transfer of appro- 
priations, it is both necessary and appro- 
priate that the General Assembly main- 
tain oversight of the utilization of the 
transfers by requiring prior approval of 
the Legislative Council in the utilization 
of the transfer authority. Therefore, the 
requirement of approval by the Legisla- 
tive Council is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council is ruled unconsti- 
tutional by a court jurisdiction, this entire 
section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 264, §5, provided: 
"TRANSFERS OF APPROPRIATIONS. 
In the event the amount of any of the 
budget classifications of maintenance and 
general operation in this act are found by 
the administrative head of the agency to 
be inadequate, then the agency head may 
request, upon forms provided for such 
purpose by the Chief Fiscal Officer of the 
State, a modification of the amounts of the 
budget classification. In that event, he 
shall set out on the forms the particular 
classifications for which he is requesting 
an increase or decrease, the amounts 
thereof, and his reasons therefor. In no 
event shall the total amount of the budget 
exceed either the amount of the appro- 
priation or the amount of the funds avail- 
able, nor shall any transfer be made from 
the capital outlay or data processing sub- 
classifications unless specific authority for 
such transfers is provided by law, except 
for transfers from capital outlay to data 
processing when determined by the De- 
partment of Information Systems that 
data processing services for a state agency 
can be performed on a more cost-efficient 
basis by the Department of Information 
Systems than through the purchase of 



19-4-522 



PUBLIC FINANCE 



286 



data processing equipment by that state 
agency. In considering the proposed modi- 
fication as prepared and submitted by 
each state agency, the Chief Fiscal Officer 
of the State shall make such studies as he 
deems necessary. The Chief Fiscal Officer 
of the State shall, after obtaining the 
approval of the Legislative Council, ap- 
prove the requested transfer if in his opin- 
ion it is in the best interest of the state. 

"The General Assembly has determined 
that the agency in this act could be oper- 
ated more efficiently if some flexibility is 
given to that agency and that flexibility is 
being accomplished by providing author- 
ity to transfer between certain items of 
appropriation made by this act. Since the 



General Assembly has granted the agency 
broad powers under the transfer of appro- 
priations, it is both necessary and appro- 
priate that the General Assembly main- 
tain oversight of the utilization of the 
transfers by requiring prior approval of 
the Legislative Council in the utilization 
of the transfer authority. Therefore, the 
requirement of approval by the Legisla- 
tive Council is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council is ruled unconsti- 
tutional by a court of competent jurisdic- 
tion, this entire section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 16 — Salaries and Payroll Disbursement 



A.C.R.C. Notes. Acts 2012, No. 281, 
§ 74, provided: "POSITION ESTABLISH- 
MENT. The Chief Fiscal Officer of the 
State shall have the authority to establish 
such positions as necessary for State 
agencies to process payroll through the 
Arkansas Administrative Statewide Infor- 
mation System for federal and state tax 
reporting purposes as necessary to comply 
with the United States Internal Revenue 
Code (IRC), 2001-Code-Vol, Sec 3401 and 
Treasury Regulations §31.3401(c)-l(a) 
and §1.1402(c)-2(b), and others which gov- 
ern the reporting of income and payment 
of withholding and matching taxes for 



personal services. The positions estab- 
lished shall not be considered as part of 
the total number of authorized positions 
for an agency and shall only be considered 
as placeholders for payments to individu- 
als who are board or commission members 
or elected officials of the State that do not 
otherwise receive salaries or wages as 
denned in §19-4-521 for their personal 
services. Further, none of the positions 
established under this section shall imply 
eligibility for state retirement or state 
health insurance benefits. The establish- 
ment of such positions shall not exceed 
250 positions in any fiscal year." 



CHAPTER 5 
REVENUE STABILIZATION LAW 

subchapter. 

3. General Revenue Operating Funds and Fund Accounts. 

4. Distribution of General Revenues. 

10. Miscellaneous Funds. 

11. Trust Funds Continued. 

12. Miscellaneous Funds Continued. 

Subchapter 3 — General Revenue Operating Funds and Fund 

Accounts 



section. 

19-5-303. Institutions of higher education 
funds. 



SECTION. 

19-5-311. Technical college funds created. 



287 REVENUE STABILIZATION LAW 19-5-303 

Effective Dates. Identical Acts 2012, 
Nos. 271 and 287, § 10: July 1, 2012. 



19-5-303. Institutions of higher education funds. 

(a)(1) University of Arkansas Fund. There is established on the books 
of the Treasurer of State, the Auditor of State, and the Chief Fiscal 
Officer of the State a fund to be known as the "University of Arkansas 
Fund". 

(2) The University of Arkansas Fund shall be used for the mainte- 
nance, operation, and improvement of the University of Arkansas, 
including the Fayetteville campus, the Cooperative Extension Service, 
the University of Arkansas agricultural experiment stations, the 
Graduate Institute of Technology, the Arkansas Archeological Survey, 
and for such other related and miscellaneous programs as may be 
provided by law. 

(3) The University of Arkansas Fund shall consist of: 

(A) Those general revenues that may be provided by law; 

(B) Those special revenues as set out in §§ 19-6-301(45), 19-6- 
301(229), and 19-6-301(232); and 

(C) Funds received from the Budget Stabilization Trust Fund as 
authorized by § 19-5-501. 

(b)(1) University of Arkansas Medical Center Fund. There is estab- 
lished on the books of the Treasurer of State, the Auditor of State, and 
the Chief Fiscal Officer of the State a fund to be known as the 
"University of Arkansas Medical Center Fund". 

(2) The University of Arkansas Medical Center Fund is to be used for 
the maintenance, operation, and improvement of the University of 
Arkansas for Medical Sciences and its various divisions and programs, 
including the area health education centers and physician extender 
programs. 

(3) The University of Arkansas Medical Center Fund shall consist of: 

(A) Those general revenues as may be provided by law; 

(B) Those special revenues as set out in § 19-6-301(224); and 

(C) Any other funds made available for the support of the Univer- 
sity of Arkansas for Medical Sciences which are required to be 
deposited into the State Treasury. 

(c)(1) University of Arkansas at Little Rock Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "University 
of Arkansas at Little Rock Fund". 

(2) The University of Arkansas at Little Rock Fund shall be used for 
the maintenance, operation, and improvement of the Little Rock 
campus of the University of Arkansas and its various divisions and 
programs, including the Industrial Research and Extension Center. 

(3) The University of Arkansas at Little Rock Fund shall consist of: 
(A) Those general revenues as may be provided by law; 



19-5-303 PUBLIC FINANCE 288 

(B) Those special revenues as set out in § 19-6-301(229); and 

(C) Any other funds made available for the support of the Univer- 
sity of Arkansas at Little Rock which are required to be deposited into 
the State Treasury by law. 

(d)(1) University of Arkansas at Monticello Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "University 
of Arkansas at Monticello Fund". 

(2) The University of Arkansas at Monticello Fund shall be used for 
the maintenance, operation, and improvement of the Monticello cam- 
pus of the University of Arkansas and its various divisions, the 
University of Arkansas at Monticello College of Technology-Crossett, 
and the University of Arkansas at Monticello College of Technology- 
McGehee. 

(3) The University of Arkansas at Monticello Fund shall consist of: 

(A) Those general revenues as may be provided by law; 

(B) The June 30, 2003, balances in the Forest Echoes Technical 
Institute Fund Account and the Great Rivers Comprehensive Life- 
long Learning Center Fund Account; and 

(C) Any other funds made available for the support of the Univer- 
sity of Arkansas at Monticello which are required to be deposited into 
the State Treasury by law. 

(e)(1) University of Arkansas at Pine Bluff Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "University 
of Arkansas at Pine Bluff Fund". 

(2) The University of Arkansas at Pine Bluff Fund shall be used for 
the maintenance, operation, and improvement of the Pine Bluff campus 
of the University of Arkansas. 

(3) The University of Arkansas at Pine Bluff Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of the Univer- 
sity of Arkansas at Pine Bluff and its various divisions, including the 
special teacher training program, which are required to be deposited 
into the State Treasury by law. 

(f)(1) Arkansas State University Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Arkansas State 
University Fund". 

(2) The Arkansas State University Fund shall be used for the 
maintenance, operation, and improvement of Arkansas State Univer- 
sity. 

(3) The Arkansas State University Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Arkansas 
State University which are required to be deposited into the State 
Treasury by law. 

(g)(1) Arkansas State University — Beebe Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 



289 REVENUE STABILIZATION LAW 19-5-303 

Chief Fiscal Officer of the State a fund to be known as the "Arkansas 
State University — Beebe Fund". 

(2) The Arkansas State University — Beebe Fund shall be used for 
the maintenance, operation, and improvement of Arkansas State Uni- 
versity-Beebe, including Arkansas State Technical Institute, Arkansas 
State University-Searcy, and Arkansas State University-Heber 
Springs. 

(3) The Arkansas State University — Beebe Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Arkansas 
State University-Beebe which are required to be deposited into the 
State Treasury by law. 

(h)(1) Arkansas Tech University Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Arkansas Tech 
University Fund". 

(2) The Arkansas Tech University Fund shall be used for the main- 
tenance, operation, and improvement of Arkansas Tech University. 

(3) The Arkansas Tech University Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Arkansas 
Tech University which are required to be deposited into the State 
Treasury by law. 

(i)(l) Henderson State University Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Henderson State 
University Fund". 

(2) The Henderson State University Fund shall be used for the 
maintenance, operation, and improvement of Henderson State Univer- 
sity, including the nursing program. 

(3) The Henderson State University Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Henderson 
State University which are required to be deposited into the State 
Treasury by law. 

(j)(D Southern Arkansas University Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Southern 
Arkansas University Fund". 

(2) The Southern Arkansas University Fund shall be used for the 
maintenance, operation, and improvement of Southern Arkansas Uni- 
versity. 

(3) The Southern Arkansas University Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Southern 
Arkansas University and its programs which are required to be 
deposited into the State Treasury by law. 

(k)(l) University of Central Arkansas Fund. There is established on 
the books of the Treasurer of State, the Auditor of State, and the Chief 



19-5-303 PUBLIC FINANCE 290 

Fiscal Officer of the State a fund to be known as the "University of 
Central Arkansas Fund". 

(2) The University of Central Arkansas Fund shall be used for the 
maintenance, operation, and improvement of the University of Central 
Arkansas. 

(3) The University of Central Arkansas Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of the Univer- 
sity of Central Arkansas which are required to be deposited into the 
State Treasury by law. 

(1)(1) University of Arkansas at Fort Smith Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "University 
of Arkansas at Fort Smith Fund". 

(2) The University of Arkansas at Fort Smith Fund shall be used for 
the maintenance, operation, and improvement of the University of 
Arkansas at Fort Smith. 

(3) The University of Arkansas at Fort Smith Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of the Univer- 
sity of Arkansas at Fort Smith which are required to be deposited into 
the State Treasury by law. 

(m)(l) North Arkansas College Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "North Arkansas 
College Fund". 

(2) The North Arkansas College Fund shall be used for the mainte- 
nance, operation, and improvement of North Arkansas College. 

(3) The North Arkansas College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of North 
Arkansas College which are required to be deposited into the State 
Treasury by law. 

(n)(l) East Arkansas Community College Fund. There is established on 
the books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "East Arkansas 
Community College Fund". 

(2) The East Arkansas Community College Fund shall be used for 
the maintenance, operation, and improvement of East Arkansas Com- 
munity College. 

(3) The East Arkansas Community College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of East 
Arkansas Community College which are required to be deposited into 
the State Treasury by law. 

(o)(l) Garland County Community College Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "Garland 
County Community College Fund". 



291 REVENUE STABILIZATION LAW 19-5-303 

(2) The Garland County Community College Fund shall be used for 
the maintenance, operation, and improvement of Garland County 
Community College. 

(3) The Garland County Community College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Garland 
County Community College which are required to be deposited into 
the State Treasury by law. 

(p)(l) Arkansas Northeastern College Fund. There is established on 
the books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Arkansas 
Northeastern College Fund". 

(2) The Arkansas Northeastern College Fund shall be used for the 
maintenance, operation, and improvement of Arkansas Northeastern 
College. 

(3) The Arkansas Northeastern College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Arkansas 
Northeastern College which are required to be deposited into the 
State Treasury by law. 

(q)(l) Phillips Community College of the University of Arkansas Fund. 

There is established on the books of the Treasurer of State, the Auditor 

of State, and the Chief Fiscal Officer of the State a fund to be known as 

the "Phillips Community College of the University of Arkansas Fund". 

(2) The Phillips Community College of the University of Arkansas 
Fund shall be used for the maintenance, operation, and improvement of 
Phillips Community College of the University of Arkansas, including 
the Stuttgart and DeWitt campuses. 

(3) The Phillips Community College of the University of Arkansas 
Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Phillips 
Community College of the University of Arkansas which are required 
to be deposited into the State Treasury by law. 

(r)(l) Rich Mountain Community College Fund. There is established on 
the books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Rich Mountain 
Community College Fund". 

(2) The Rich Mountain Community College Fund shall be used for 
the maintenance, operation, and improvement of Rich Mountain Com- 
munity College. 

(3) The Rich Mountain Community College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Rich 
Mountain Community College which are required to be deposited into 
the State Treasury by law. 

(s)(l) Northwest Arkansas Community College Fund. There is estab- 
lished on the books of the Treasurer of State, the Auditor of State, and 



19-5-303 PUBLIC FINANCE 292 

the Chief Fiscal Officer of the State a fund to be known as the 
"Northwest Arkansas Community College Fund". 

(2) The Northwest Arkansas Community College Fund shall be used 
for the maintenance, operation, and improvement of Northwest Arkan- 
sas Community College. 

(3) The Northwest Arkansas Community College Fund shall consist 
of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Northwest 
Arkansas Community College which are required to be deposited into 
the State Treasury by law. 

(t)(l) South Arkansas Community College Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "South 
Arkansas Community College Fund". 

(2) The South Arkansas Community College Fund shall be used for 
the maintenance, operation, and improvement of South Arkansas 
Community College. 

(3) The South Arkansas Community College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of South 
Arkansas Community College which are required to be deposited into 
the State Treasury by law. 

(u)(l) SAU-Tech Fund. There is established on the books of the 
Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of 
the State a fund to be known as the "SAU-Tech Fund". 

(2) The SAU-Tech Fund shall be used for the maintenance, opera- 
tion, and improvement of SAU-Tech, the Arkansas Fire Training 
Academy, and the Arkansas Environmental Training Academy. 

(3) The SAU-Tech Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of SAU-Tech 
and its programs which are required to be deposited into the State 
Treasury by law. 

(v)(l) Mid-South Community College Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Mid-South 
Community College Fund". 

(2) The Mid-South Community College Fund shall be used for the 
maintenance, operation, and improvement of Mid-South Community 
College. 

(3) The Mid-South Community College Fund shall consist of: 

(A) Those general revenues as may be provided by law; 

(B) Those special revenues as set out in § 19-6-301(183); and 

(C) Any other funds made available for the support of Mid-South 
Community College which are required to be deposited into the State 
Treasury by law. 

(w)(l) University of Arkansas Community College at Hope Fund. There 
is established on the books of the Treasurer of State, the Auditor of 



293 REVENUE STABILIZATION LAW 19-5-303 

State, and the Chief Fiscal Officer of the State a fund to be known as the 
"University of Arkansas Community College at Hope Fund". 

(2) The University of Arkansas Community College at Hope Fund 
shall be used for the maintenance, operation, and improvement of the 
University of Arkansas Community College at Hope. 

(3) The University of Arkansas Community College at Hope Fund 
shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of the Univer- 
sity of Arkansas Community College at Hope which are required to be 
deposited into the State Treasury by law. 

(x)(l) University of Arkansas Community College at Batesville Fund. 
There is established on the books of the Treasurer of State, the Auditor 
of State, and the Chief Fiscal Officer of the State a fund to be known as 
the "University of Arkansas Community College at Batesville Fund". 

(2) The University of Arkansas Community College at Batesville 
Fund shall be used for the maintenance, operation, and improvement of 
the University of Arkansas Community College at Batesville. 

(3) The University of Arkansas Community College at Batesville 
Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of the Univer- 
sity of Arkansas Community College at Batesville which are required 
to be deposited into the State Treasury by law. 

(y)(l) Higher Education Institutions Performance Fund. The Higher 
Education Institutions Performance Fund shall be used to provide 
additional support for institutions of higher education on the basis of 
institutional performance as determined by the Arkansas Higher 
Education Coordinating Board and reported to the Legislative Council. 

(2) The Higher Education Institutions Performance Fund shall con- 
sist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds provided by law. 

(z)(l) Arkansas State University — Newport Fund. There is estab- 
lished on the books of the Treasurer of State, the Auditor of State, and 
the Chief Fiscal Officer of the State a fund to be known as the "Arkansas 
State University — Newport Fund". 

(2) The Arkansas State University — Newport Fund shall be used for 
the maintenance, operation, and improvement of Arkansas State Uni- 
versity — Newport. 

(3) The Arkansas State University — Newport Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Arkansas 
State University — Newport which are required to be deposited into 
the State Treasury by law. 

(aa)(l) Two-year College Model Formula Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "Two-Year 
College Model Formula Fund". 



19-5-303 PUBLIC FINANCE 294 

(2) The Two-Year College Model Formula Fund shall be used for the 
distribution of funds to the various two-year colleges by the Depart- 
ment of Higher Education as may be authorized by law. 

(3) The Two-Year College Model Formula Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available by the General Assembly. 
(bb)(l) Cossatot Community College of the University of Arkansas 

Fund. There is established on the books of the Treasurer of State, the 
Auditor of State, and the Chief Fiscal Officer of the State a fund to be 
known as the "Cossatot Community College of the University of 
Arkansas Fund". 

(2) The Cossatot Community College of the University of Arkansas 
Fund shall be used for the maintenance, operation, and improvement of 
Cossatot Community College of the University of Arkansas. 

(3) The Cossatot Community College of the University of Arkansas 
Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Cossatot 
Community College of the University of Arkansas which are required 
to be deposited into the State Treasury by law. 

(cc)(l) University of Arkansas Community College at Morrilton Fund. 
There is established on the books of the Treasurer of State, the Auditor 
of State, and the Chief Fiscal Officer of the State a fund to be known as 
the "University of Arkansas Community College at Morrilton Fund". 

(2) The University of Arkansas Community College at Morrilton 
Fund shall be used for the maintenance, operation, and improvement of 
the University of Arkansas Community College at Morrilton. 

(3) The University of Arkansas Community College at Morrilton 
Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of the Univer- 
sity of Arkansas Community College at Morrilton which are required 
to be deposited into the State Treasury by law. 

(dd)(l) Arkansas State University-Mountain Home Fund. There is es- 
tablished on the books of the Treasurer of State, the Auditor of State, 
and the Chief Fiscal Officer of the State a fund to be known as the 
"Arkansas State University-Mountain Home Fund". 

(2) The Arkansas State University-Mountain Home Fund shall be 
used for the maintenance, operation, and improvement of Arkansas 
State University-Mountain Home. 

(3) The Arkansas State University-Mountain Home Fund shall con- 
sist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Arkansas 
State University-Mountain Home which are required to be deposited 
into the State Treasury by law. 

(ee)(l) National Park Community College Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 



295 REVENUE STABILIZATION LAW 19-5-303 

Chief Fiscal Officer of the State a fund to be known as the "National 
Park Community College Fund". 

(2) The National Park Community College Fund shall be used for the 
maintenance, operation, and improvement of National Park Commu- 
nity College. 

(3) The National Park Community College Fund shall consist of: 

(A) Those general revenues transferred each month from the 
Garland County Community College Fund; 

(B) The June 30, 2003, balances in the Garland County Commu- 
nity College Fund; and 

(C) Any other funds made available for the support of National 
Park Community College which are required to be deposited into the 
State Treasury by law. 

(fi)(l) School for Math, Science, and Arts Fund. There is established 
on the books of the Treasurer of State, the Auditor of State, and the 
Chief Fiscal Officer of the State a fund to be known as the "School for 
Math, Science, and Arts Fund". 

(2) The School for Math, Science, and Arts Fund shall be used to 
provide for the maintenance, operation, and improvement required by 
the Arkansas School for Mathematics, Sciences, and the Arts in 
carrying out its powers, functions, and duties as set out by law. 

(3) The School for Math, Science, and Arts Fund shall consist of: 

(A) Moneys allocated and transferred from the Educational Excel- 
lence Trust Fund; 

(B) Any general revenues as may be provided by the Revenue 
Stabilization Law, § 19-5-101 et seq.; and 

(C) Any other moneys as may be authorized by law. 

(gg)(l) Ozarka College Fund. There is established on the books of the 
Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of 
the State a fund to be known as the "Ozarka College Fund". 

(2) The Ozarka College Fund shall be used for the maintenance, 
operation, and improvement of Ozarka College. 

(3) The Ozarka College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Ozarka 
College which are required to be deposited into the State Treasury by 
law. 

(hh)(l) Southeast Arkansas College Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "Southeast 
Arkansas College Fund". 

(2) The Southeast Arkansas College Fund shall be used for the 
maintenance, operation, and improvement of Southeast Arkansas Col- 
lege. 

(3) The Southeast Arkansas College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Southeast 
Arkansas College which are required to be deposited into the State 
Treasury by law. 



19-5-304 



PUBLIC FINANCE 



296 



(ii)(l) College of The Ouachitas Fund. There is established on the 
books of the Treasurer of State, the Auditor of State, and the Chief 
Fiscal Officer of the State a fund to be known as the "College of The 
Ouachitas Fund". 

(2) The College of The Ouachitas Fund shall be used for the main- 
tenance, operation, and improvement of College of The Ouachitas. 

(3) The College of The Ouachitas Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of College of 
The Ouachitas which are required to be deposited into the State 
Treasury by law. 



History. Acts 1973, No. 750, § 6; 1975, 
No. 868, §§ 8, 9; 1977, No. 955, §§ 12, 13; 
1979, No. 1013, § 9; 1979, No. 1077, § 3; 
1981, No. 938, § 7; 1983, No. 801, §§ 5-7, 
10; 1985, No. 888, § 8; A.S.A. 1947, § 13- 
521; Acts 1989, No. 629, § 4; 1991, No. 
335, §§ 1, 2; 1991, No. 1135, § 2; 1993, 
No. 447, § 8; 1993, No. 1073, §§ 2, 3; 
1995, No. 1163, §§ 6-9; 1995, No. 1296, 
§ 70; 1997, No. 1248, §§ 6, 7; 1999, No. 
1463, §§ 3-6; 2001, No. 90, § 9; 2001, No. 



292, § 12; 2001, No. 297, § 5; 2003, No. 
1290, § 4; 2003 (1st Ex. Sess.), No. 55, 
§§ 2, 3, 27, 29, 31, 34; 2005, No. 2282, § 3; 
2005, No. 2316, § 3; 2007, No. 1032, 
§§ 4-6; 2007, No. 1201, §§ 4-6; 2009, No. 
1440, § 1; 2009, No. 1441, § 1; 2011, No. 
1095, § 2; 2011, No. 1115, § 2; 2012, No. 
271, § 1; 2012, No. 287, § 1. 

Amendments. The 2012 amendment 
by identical acts Nos. 271 and 287 added 
(gg\ (hh), and (ii). 



19-5-304. Education Fund. 



A.C.R.C. Notes. Acts 2012, No. 178, 
§ 7, provided: "HONORING ARKANSAS' 
WAR HEROES. The appropriation autho- 
rized in this Act for Honoring Arkansas' 
War Heroes is not intended to be carried 
forward into the base level for the pur- 
poses of budget preparation. Any appro- 
priation request for this purpose shall be 
considered a new appropriation request, 
and therefore will be considered a change 
level budget request. 

"Notwithstanding any law pertaining to 



the transfer of year-end fund balances or 
any law to the contrary, any funds pro- 
vided to the Educational Television Fund 
Account for the purpose of funding the 
Honoring Arkansas' War Heroes Appro- 
priation which remain in the Educational 
Television Fund Account at the end of a 
fiscal year shall remain in the Educational 
Television Fund Account and shall con- 
tinue to be allocated to the Honoring Ar- 
kansas' War Heroes Appropriation in the 
following fiscal year." 



19-5-305. Public School Fund, 



Acts 2012, No. 246, §21, provided: 
TURNBACK FUNDS. Any Federal Min- 
eral Leasing Funds, Federal Forest Re- 
serve Funds, Federal Flood Control 
Funds, or any similar turnback funds in 
the State Treasury for which the eligible 
county and/or school district cannot be 



identified may be transferred to the De- 
partment of Education Public School 
Fund Account and used for any lawful 
school purpose. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-306. Department of Human Services Fund. 



A.C.R.C. Notes. Acts 2012, No. 250, 
§ 8, provided: "DEPARTMENT OF HU- 
MAN SERVICES GRANTS FUND AC- 



COUNT. The Department of Human Ser- 
vices Grants Fund Account shall be used 
for the following grant programs to consist 



297 REVENUE STABILIZATION LAW 19-5-311 

of general revenues and any other nonfed- "(vi) Infant Infirmary — nursing home 

eral funds, as may be appropriated by the care; 

General Assembly: "(vii) Public Nursing Home Care; 

"(i) Children's Medical Services; "(viii) Prescription Drugs; 

"(ii) Food Stamp Employment and "(ix) Hospital and Medical Services; 
Training Program; "(x) Child and Family Life Institute; 

"(hi) Aid to the Aged, Blind, and Dis- "(xi) Community Services Block Grant; 
abled; "(xii) ARKIDSFIRST; 

"(iv) Transitional Employment Assis- "(xiii) Child Health Management Ser- 

tance Program; vices; and 

"(v) Private nursing home care; "(xiv) Child Care Grant" 

19-5-311. Technical college funds created. 

(a)(1) There is established on the books of the Treasurer of State, the 
Auditor of State, and the Chief Fiscal Officer of the State a fund to be 
known as the "Black River Technical College Fund", there to be used for 
the maintenance, operation, and improvement of Black River Technical 
College. 

(2) The Black River Technical College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Black River 
Technical College which are required to be deposited into the State 
Treasury by law. 

(b)(1) There is established on the books of the Treasurer of State, the 
Auditor of State, and the Chief Fiscal Officer of the State a fund to be 
known as the "Pulaski Technical College Fund", there to be used for the 
maintenance, operation, and improvement of Pulaski Technical Col- 
lege. 

(2) The Pulaski Technical College Fund shall consist of: 

(A) Those general revenues as may be provided by law; and 

(B) Any other funds made available for the support of Pulaski 
Technical College which are required to be deposited into the State 
Treasury by law. 

History. Acts 1991, No. 930, § 3; 1991, §§ 10, 27; 1999, No. 1463, §§ 9-11; 2003 

No. 931, § 3; 1991, No. 935, § 3; 1991, No. (1st Ex. Sess.), No. 55, §§ 10-13; 2012, No. 

936, § 3; 1991, No. 937, § 3; 1991, No. 271, § 2; 2012, No. 287, § 2. 
938, § 3; 1991, No. 939, § 3; 1991, No. Amendments. The 2012 amendment 

940, § 3; 1991, No. 942, § 3; 1991, No. by identical acts Nos. 271 and 287 deleted 

944, § 3; 1991, No. 945, § 3; 1991, No. former (b), (c), and (e), and redesignated 

l} 9 \\ ji? 19 3 N0 ' 10?3 ' §§ 16 ' 18; 1995 ' the remaining subsection accordingly. 
No. 1163, §§ 12, 13; 1997, No. 1248, 5J 

Subchapter 4 — Distribution of General Revenues 

section. enues for fiscal year 2012- 

19-5-401. Allocations for fiscal year 2012- 2013 and thereafter. 

2013 and thereafter. 
19-5-402. Maximum allocations of rev- 



19-5-401 PUBLIC FINANCE 298 

Effective Dates. Identical Acts 2012, 
Nos. 271 and 287, § 10: July 1, 2012. 



19-5-401. Allocations for fiscal year 2012-2013 and thereafter. 

Commencing with the fiscal year beginning July 1, 2012, and each 
fiscal year thereafter, the Treasurer of State shall transfer all remain- 
ing general revenues available for distribution on the last day of 
business in July 2012 and on the last day of business in each calendar 
month thereafter during the fiscal year to the various funds and fund 
accounts participating in general revenues in the proportions of the 
maximum allocation as the individual allocation to the fund or fund 
account bears to the total of the maximum allocation as provided in 
§ 19-5-402. 

History. Acts 1973, No. 750, § 11; 1974 2316, § 16; 2007, No. 1032, § 34; 2007, 

(1st Ex. Sess.), No. 90, § 1; 1975, No. 868, No. 1201, § 34; 2009, No. 1440, § 7; 2009, 

§ 15; 1977, No. 955, § 1; 1977 (1st Ex. No. 1441, § 7; 2010, No. 262, § 12; 2010, 

Sess.), No. 7, § 1; 1979, No. 1115, § 1; No. 296, § 12; 2011, No. 1095, § 16; 2011, 

1981, No. 937, § 1; 1983, No. 801, § 12; No> m5 § 16 20 12, No. 271, § 6; 2012, 

1983 (1st Ex. Sess.), No. 119, § 1; 1985, No 2 87 S 6 

?q«7 8 m' § Q9 5 « t S it S£ ; i 13 «9Q 5; 8 A f/ Amendments. The 2012 amendment 

1987, No. 928, § 15; 1989, No. 629, § 14; , . , , . , .. XT or?1 , OQ „ u , . 

1991 No. 1135, § 12; 1993, No. 1073, ^T^^^^i^w^"- 

§ 30; 1995, No. 1163, § 31; 1997, No. tuted "2012-2013' for "2011-2012 in the 

1248, § 28; 1999, No. 1463, § 30; 2001, section heading; substituted 2012 for 

No. 1646, § 29; 2003 (1st Ex. Sess.), No. "2011" in two places; and substituted "§ 

55, § 39; 2005, No. 2282, § 16; 2005, No. 19-5-402(a)" for "§ 19-5-402(a) and (b). w 

19-5-402. Maximum allocations of revenues for fiscal year 2012- 
2013 and thereafter. 

The Treasurer of State shall first make monthly allocations in the 
proportions set out in this section to the funds and fund accounts listed 
below until there has been transferred a total of four billion seven 
hundred twenty- seven million five hundred thousand dollars 
($4,727,500,000) or so much thereof as may become available, provided 
that the Treasurer of State shall make such monthly allocations in 
accordance with each fund or fund account's proportionate part of the 
total of all such allocations set forth in this section: 

Maximum 

Name of Fund or Fund Account Allocation 

PUBLIC SCHOOL FUND 

(1) Department of Education Public School Fund 

Account $1,961,576,841 

(2) State Library Public School Fund Account $ 5,672,143 

(3) Department of Career Education Public School 

Fund Account $ 32,284,224 



299 REVENUE STABILIZATION LAW 19-5-402 

Maximum 

Name of Fund or Fund Account Allocation 

GENERAL EDUCATION FUND 

(1) Department of Education Fund Account $ 15,471,687 

(2) Educational Facilities Partnership Fund Account $ 34,828,951 

(3) Division of Public School Academic Facilities and 
Transportation Fund Account $ 2,492,317 

(4) Educational Television Fund Account $ 5,075,556 

(5) School for the Blind Fund Account $ 6,110,288 

(6) School for the Deaf Fund Account $ 10,457,470 

(7) State Library Fund Account $ 3,345,374 

(8) Department of Career Education Fund Account $ 3,341,028 

(9) Rehabilitation Services Fund Account $ 12,953,772 
Technical Institutes: 

(10) Crowley's Ridge Technical Institute Fund Ac- 
count $ 2,498,384 

(11) Northwest Technical Institute Fund Account $ 2,908,129 

(12) Riverside Vocational Technical School Fund Ac- 
count $ 2,226,907 

DEPARTMENT OF HUMAN SERVICES FUND 

(1) Department of Human Services Administration 

Fund Account $ 15,637,721 

(2) Aging and Adult Services Fund Account $ 17,391,126 

(3) Children and Family Services Fund Account $ 49,511,800 

(4) Child Care and Early Childhood Education Fund 

Account $ 563,454 

(5) Youth Services Fund Account $ 48,255,346 

(6) Developmental Disabilities Services Fund Account $ 61,773,664 

(7) Medical Services Fund Account $ 4,958,217 

(8) Department of Human Services Grants Fund Ac- 
count $805,960,522 

(9) Behavioral Health Services Fund Account $ 78,502,870 

(10) State Services for the Blind Fund Account $ 1,880,943 

(11) County Operations Fund Account $ 47,191,028 

STATE GENERAL GOVERNMENT FUND 

(1) Department of Arkansas Heritage Fund Account $ 6,203,610 

(2) Arkansas Agriculture Department Fund Account $ 15,851,863 

(3) Department of Labor Fund Account $ 3,005,407 

(4) Department of Higher Education Fund Account $ 3,291,808 

(5) Higher Education Grants Fund Account $ 34,491,806 

(6) Arkansas Economic Development Commission 

Fund Account $ 10,311,798 



19-5-402 PUBLIC FINANCE 300 

Maximum 
Name of Fund or Fund Account Allocation 

(7) Department of Correction Inmate Care and Cus- 
tody Fund Account $298,842,000 

(8) Department of Community Correction Fund Ac- 
count $ 69,975,623 

(9) State Military Department Fund Account $ 9,466,483 

(10) Parks and Tourism Fund Account $ 22,607,437 

(11) Arkansas Department of Environmental Quality 

Fund Account $4,210,633 

(12) Miscellaneous Agencies Fund Account $ 56,788,049 

COUNTY AID FUND $ 19,645,067 

COUNTY JAIL REIMBURSEMENT FUND $ 9,453,607 

CRIME INFORMATION SYSTEM FUND $ 3,681,833 

CHILD SUPPORT ENFORCEMENT FUND $ 12,951,328 

PUBLIC HEALTH FUND $ 90,838,467 

MERIT ADJUSTMENT FUND $- 
MOTOR VEHICLE ACQUISITION REVOLVING 

FUND $- 

MUNICIPAL AID FUND $ 27,372,099 
DEPARTMENT OF ARKANSAS STATE POLICE 

FUND $ 62,293,971 

DEPARTMENT OF WORKFORCE SERVICES FUND $ 3,775,642 

INSTITUTIONS OF HIGHER EDUCATION 

(1) ARKANSAS STATE UNIVERSITY FUND $ 56,856,765 

(2) ARKANSAS TECH UNIVERSITY FUND $ 31,535,222 

(3) HENDERSON STATE UNIVERSITY FUND $ 18,713,847 

(4) SOUTHERN ARKANSAS UNIVERSITY FUND $ 15,449,575 

(5) UNIVERSITY OF ARKANSAS FUND $116,761,613 

(6) UNIVERSITY OF ARKANSAS FUND-ARCHEO- 

LOGICAL SURVEY $ 2,327,380 

(7) UNIVERSITY OF ARKANSAS FUND-DIVISION 

OF AGRICULTURE $ 62,800,138 

(8) UNIVERSITY OF ARKANSAS FUND-CLINTON 

SCHOOL $ 2,295,575 

(9) UNIVERSITY OF ARKANSAS FUND-CRIMI- 
NAL JUSTICE INSTITUTE $ 1,825,769 

(10) SCHOOL FOR MATH, SCIENCE, AND ARTS 

FUND $ 1,113,015 

(11) UNIVERSITY OF ARKANSAS AT FORT SMITH 

FUND $ 20,245,166 



301 REVENUE STABILIZATION LAW 19-5-402 

Maximum 
Name of Fund or Fund Account Allocation 

(12) UNIVERSITY OF ARKANSAS AT LITTLE 

ROCK FUND $ 59,841,915 

(13) UNIVERSITY OF ARKANSAS MEDICAL CEN- 
TER FUND $ 95,656,661 

(14) UNIVERSITY OF ARKANSAS MEDICAL CEN- 
TER FUND - CHILD SAFETY CENTER $ 720,588 

(15) UNIVERSITY OF ARKANSAS MEDICAL CEN- 
TER FUND - INDIGENT CARE $ 5,342,181 

(16) UNIVERSITY OF ARKANSAS MEDICAL CEN- 
TER FUND - CHILD ABUSE/RAPE/DOMESTIC 

VIOLENCE $ 735,000 

(17) UNIVERSITY OF ARKANSAS MEDICAL CEN- 
TER FUND - PEDIATRICS/PSYCHIATRIC 

RESEARCH $ 1,950,000 

(18) UNIVERSITY OF ARKANSAS AT MONTI- 
CELLO FUND $ 15,832,510 

(19) UNIVERSITY OF ARKANSAS AT PINE BLUFF 

FUND $ 25,229,737 

(20) UNIVERSITY OF CENTRAL ARKANSAS 

FUND $ 52,284,021 

(21) ARKANSAS NORTHEASTERN COLLEGE 

FUND $ 8,577,052 

(22) ARKANSAS STATE UNIVERSITY - BEEBE 

FUND $ 12,044,916 

(23) ARKANSAS STATE UNIVERSITY - MOUN- 
TAIN HOME FUND $ 3,582,223 

(24) ARKANSAS STATE UNIVERSITY - NEWPORT 

FUND $ 5,992,293 

(25) COSSATOT COMMUNITY COLLEGE OF THE 
UNIVERSITY OF ARKANSAS FUND $ 3,351,626 

(26) EAST ARKANSAS COMMUNITY COLLEGE 

FUND $ 5,788,058 

(27) MID-SOUTH COMMUNITY COLLEGE FUND $ 3,818,117 

(28) NATIONAL PARK COMMUNITY COLLEGE 

FUND $ 8,943,803 

(29) NORTH ARKANSAS COLLEGE FUND $ 7,966,091 

(30) NORTHWEST ARKANSAS COMMUNITY COL- 
LEGE FUND $ 10,084,563 

(31) PHILLIPS COMMUNITY COLLEGE OF THE 
UNIVERSITY OF ARKANSAS FUND $ 9,063,088 

(32) RICH MOUNTAIN COMMUNITY COLLEGE 

FUND $ 3,201,250 

(33) SAU - TECH FUND $ 5,639,168 



19-5-506 PUBLIC FINANCE 302 

Maximum 
Name of Fund or Fund Account Allocation 

(34) SAU - TECH FUND-ARKANSAS ENVIRON- 
MENTAL TRAINING ACADEMY $ 368,404 

(35) SAU - TECH FUND-ARKANSAS FIRE 

TRAINING ACADEMY $ 1,651,221 

(36) SOUTH ARKANSAS COMMUNITY COLLEGE 

FUND $ 5,994,316 

(37) UNIVERSITY OF ARKANSAS COMMUNITY 

COLLEGE AT BATESVILLE FUND $ 4,050,586 

(38) UNIVERSITY OF ARKANSAS COMMUNITY 

COLLEGE AT HOPE FUND $ 4,491,997 

(39) UNIVERSITY OF ARKANSAS COMMUNITY 

COLLEGE AT MORRILTON FUND $ 4,787,010 

(40) BLACK RIVER TECHNICAL COLLEGE FUND $ 6,049,404 

(41) COLLEGE OF THE OUACHITAS FUND $ 3,527,261 

(42) OZARKA COLLEGE FUND $ 2,988,694 

(43) PULASKI TECHNICAL COLLEGE FUND $ 14,457,088 

(44) SOUTHEAST ARKANSAS COLLEGE FUND $ 5,636,798 

History. Acts 1973, No. 750, § 11; 1974 Amendments. The 2012 amendment 

(1st Ex. Sess.), No. 90, § 1; 1975, No. 868, by identical acts Nos. 271 and 287 substi- 

§ 15; 1977, No. 955, § 1; 1977 (1st Ex. tuted "2012-2013" for "2011-2012" in the 

Sess.), No. 7, § 1; 1979, No. 1115, § 1; section heading; substituted "four billion 

1981, No. 937, § 1; 1983, No. 801, § 12; seven hundred twenty-seven million five 

m 83 J«1 E 9 X , M' X, ^ I &V hundred thousand dollars 

No. 888, § 25; A.S.A. 1947, § 13-515; Acts /*/ 707 cnn nnn^» *v,„ «f u;n™ «„« 

1987, No 928, § 15; 1989 No. 629, § 15; ($4,727 500,000) for four billion five 

1991, No. 1135, § 14; 1993, No. 1073, * un dred , _ S1 ^ "^ S^'S^ 8 

§ 32; 1995, No. 1163, § 32; 1997, No. thousand dollars ($4,564,025,000) in the 

1248, § 29; 1999, No. 1463, § 31; 2001, introductory language; under the "INSTI- 

No. 1646, § 30; 2003 (1st Ex Sess.), No! TUTIONS OF HIGHER EDUCATION" 

55, § 40; 2005, No. 2282, § 17; 2005, No. heading, inserted present (16) and (17) 

2316, § 17; 2007, No. 1032, § 35; 2007, and redesignated the remaining subdivi- 

No. 1201, § 35; 2009, No. 1440, § 8; 2009, sions accordingly; rewrote the dollar 

No. 1441, § 8; 2010, No. 262, § 13; 2010, amounts under the "Maximum Allocation" 

No. 296, § 13; 2011, No. 1095, § 17; 2011, heading throughout the section; deleted 

No. 1115, § 17; 2012, No. 271, § 7; 2012, the former last paragraph and former (b). 
No. 287, § 7. 

Subchapter 5 — Budget Stabilization Trust Fund 

19-5-506. Financial aid programs. 

A.C.R.C. Notes. Acts 2012, No. 247, funds attributable to the financial aid 

§ 18, provided: "LOANS. In order to pro- programs under the then current official 

vide timely payments under financial aid revenue estimates. In the event of an 

appropriations made in this Act, the Chief unanticipated state revenue shortfall, any 

Fiscal Officer of the State is authorized to such loans remaining at the end of a fiscal 

provide loans from the Budget Stabiliza- year shall be repaid from revenues dis- 

tion Trust Fund to make available all tributed in the first two months of the 



303 



REVENUE STABILIZATION LAW 



19-5-506 



next fiscal year. Funds for appropriations 
made in this Act for purposes other than 
financial aid shall not be affected by the 
application of this provision. 



"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 6 — Municipal and County Aid Funds 



A.C.R.C. Notes. Acts 2012, No. 208, 
§ 11, provided: "LOANS TO CITIES AND 
COUNTIES. On July 1 of each fiscal year, 
the Chief Fiscal Officer of the State shall 
request a transfer by the State Treasurer 
from the Budget Stabilization Trust Fund 
to the County Aid Fund and to the Munici- 
pal Aid Fund to assist the various cities 
and counties in meeting cash flow needs 
early in the state fiscal year. The transfer 
shall be a loan to be repaid in equal 
installments from general revenue distri- 
butions each month during the fiscal year 
for which the loan was made and shall be 
in addition to any other loans authorized 
by law for the County Aid and Municipal 
Aid Funds. The amount of such loan for 
each fiscal year shall be $3,517,657 to the 
Municipal Aid Fund and $1,906,079 to the 
County Aid Fund, or so much thereof as 
may be available in the Budget Stabiliza- 
tion Trust Fund as determined by the 
Chief Fiscal Officer of the State. Upon 
such transfer being completed, the State 
Treasurer shall immediately distribute 
such funds to each of the several munici- 
palities and counties in the same manner 
as general revenues are distributed. 

"It is the intent of the General Assembly 
that the Chief Fiscal Officer of the State 
and the State Treasurer shall make every 
reasonable, and financially sound effort to 
insure that local governments receive the 
full amount of the loan authorized herein 
on July 1 of each year and that the monies 
authorized for local governments from 
general revenues be distributed in equal 
monthly payments. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 208, § 12, provided: 
"CARRY FORWARD. At the close of each 
fiscal year any unexpended funds for the 
County Aid and Municipal Aid line items 
shall be carried forward and made avail- 



able for the same purpose for the next 
fiscal year. 

"Any carry forward of unexpended bal- 
ance of funding as authorized herein, may 
be carried forward under the following 
conditions: 

"(1) Prior to June 30, 2012 the Agency 
shall by written statement set forth its 
reason(s) for the need to carry forward 
said funding to the Department of Fi- 
nance and Administration Office of Bud- 
get; 

"(2) The Department of Finance and 
Administration Office of Budget shall re- 
port to the Arkansas Legislative Council 
all amounts carried forward by the Sep- 
tember Arkansas Legislative Council or 
Joint Budget Committee meeting which 
report shall include the name of the 
Agency, Board, Commission or Institution 
and the amount of the funding carried 
forward, the program name or line item, 
the funding source of that appropriation 
and a copy of the written request set forth 
in (1) above; 

"(3) Each Agency, Board, Commission 
or Institution shall provide a written re- 
port to the Arkansas Legislative Council 
or Joint Budget Committee containing all 
information set forth in item (2) above, 
along with a written statement as to the 
current status of the project, contract, 
purpose etc. for which the carry forward 
was originally requested no later than 
thirty (30) days prior to the time the 
Agency, Board, Commission or Institution 
presents its budget request to the Arkan- 
sas Legislative Council/Joint Budget 
Committee; and 

"(4) Thereupon, the Department of Fi- 
nance and Administration shall include 
all information obtained in item (3) above 
in the budget manuals and/or a statement 
of non-compliance by the Agency, Board, 
Commission or Institution. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-911 



PUBLIC FINANCE 
Subchapter 9 — Trust Funds 



304 



19-5-911. Second Injury Trust Fund. 



A.C.R.C. Notes. Acts 2012, No. 128, 
§ 7, provided: "INVESTMENTS. All such 
funds as are held at any time in the Death 
and Permanent Total Disability Trust 
Fund, Second Injury Trust Fund, and the 
Workers' Compensation Fund shall be in- 
vested and reinvested to the extent fea- 



sible, all such investments as authorized 
for use by the Office of the Treasurer shall 
be available to the listed funds. The move- 
ment of these funds into and out of invest- 
ments shall be by fund transfers as di- 
rected by the Chief Executive Officer of 
the Workers' Compensation Commission." 



19-5-924. Workers' Compensation Fund. 



A.C.R.C. Notes. Acts 2012, No. 128, 
§ 7, provided: "INVESTMENTS. All such 
funds as are held at any time in the Death 
and Permanent Total Disability Trust 
Fund, Second Injury Trust Fund, and the 
Workers' Compensation Fund shall be in- 
vested and reinvested to the extent fea- 



sible, all such investments as authorized 
for use by the Office of the Treasurer shall 
be available to the listed funds. The move- 
ment of these funds into and out of invest- 
ments shall be by fund transfers as di- 
rected by the Chief Executive Officer of 
the Workers' Compensation Commission.'' 



19-5-925. Death and Permanent Total Disability Trust Fund. 



A.C.R.C. Notes. Acts 2012, No. 128, 
§ 7, provided: "INVESTMENTS. All such 
funds as are held at any time in the Death 
and Permanent Total Disability Trust 
Fund, Second Injury Trust Fund, and the 
Workers' Compensation Fund shall be in- 
vested and reinvested to the extent fea- 

19-5-945. Court Awards Fund. 



sible, all such investments as authorized 
for use by the Office of the Treasurer shall 
be available to the listed funds. The move- 
ment of these funds into and out of invest- 
ments shall be by fund transfers as di- 
rected by the Chief Executive Officer of 
the Workers' Compensation Commission." 



A.C.R.C. Notes. Acts 2012, No. 284, 
§ 14, provided: "COURT AWARDS FUND 
TRANSFER PROVISION. Monies depos- 
ited in the Court Awards Fund each fiscal 
year may be used for motor vehicle pur- 
chases and associated taxes and/or motor 
vehicle equipping and renovation costs, 
agency operational needs and capital im- 
provements for the Department of Arkan- 
sas State Police. Provided however, funds 
received from the Special State Assets 
Forfeiture Fund shall be deposited into 
the Court Awards Fund to be used by the 
Department of Arkansas State Police for 
law enforcement purposes consistent with 
governing federal law. The Department of 
Arkansas State Police may also request a 
fund transfer from the Court Awards 
Fund or the Department of Arkansas 
State Police Fund to the Motor Vehicle 



Acquisition Revolving Fund. The provi- 
sions of this section shall be subject to 
prior review and approval of the Arkansas 
Legislative Council or Joint Budget Com- 
mittee. 

"Determining the maximum number of 
employees and the maximum amount of 
appropriation and general revenue fund- 
ing for a state agency each fiscal year is 
the prerogative of the General Assembly. 
This is usually accomplished by delineat- 
ing such maximums in the appropriation 
act(s) for a state agency and the general 
revenue allocations authorized for each 
fund and fund account by amendment to 
the Revenue Stabilization law. Further, 
the General Assembly has determined 
that the Department of Arkansas State 
Police may operate more efficiently if 
some flexibility is provided to the Depart- 



305 



REVENUE STABILIZATION LAW 



19-5-1002 



ment of Arkansas State Police authorizing 
broad powers under this Section. There- 
fore, it is both necessary and appropriate 
that the General Assembly maintain over- 
sight by requiring prior approval of the 
Legislative Council or Joint Budget Com- 
mittee as provided by this section. The 
requirement of approval by the Legisla- 
tive Council or Joint Budget Committee is 



not a severable part of this section. If the 
requirement of approval by the Legisla- 
tive Council or Joint Budget Committee is 
ruled unconstitutional by a court of com- 
petent jurisdiction, this entire section is 
void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-950. Crime Victims Reparations Revolving Fund. 



A.C.R.C. Notes. Acts 2012, No. 281, 
§ 61, provided: "YEARLY FUND TRANS- 
FERS. On July 1, 2010 and each July 1, 
thereafter, if the fund balance of the 
Crime Victims Reparation Revolving 
Fund falls below one million dollars 
($1,000,000), the Chief Fiscal Officer of 
the State may transfer on his or her books 
and those of the State Treasurer and the 
Auditor of the State a sum not to exceed 
one million dollars ($1,000,000) or so 
much thereof as is available from fund 



balances that exceed seven million dollars 
($7,000,000) as determined by the Chief 
Fiscal Officer of the State, from the State 
Administration of Justice Fund to the 
Crime Victims Reparations Revolving 
Fund to provide funds for personal ser- 
vices, operating expenses and claims for 
the Office of the Attorney General — 
Crime Victims Reparations Program. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 10 — Miscellaneous Funds 



SECTION. 

19-5-1011. Crime Information 
Fund. 



System 



Effective Dates. Acts 2012, No. 283, 
§ 15: July 1, 2012. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly, that the Constitution 
of the State of Arkansas prohibits the 
appropriation of funds for more than a one 
(1) year period; that the effectiveness of 
this Act on July 1, 2012 is essential to the 
operation of the agency for which the 
appropriations in this Act are provided, 
and that in the event of an extension of 



the legislative session, the delay in the 
effective date of this Act beyond July 1, 
2012 could work irreparable harm upon 
the proper administration and provision 
of essential governmental programs. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after July 1, 
2012." 



19-5-1002. Motor Vehicle Acquisition Revolving Fund. 



A.C.R.C. Notes. Acts 2012, No. 284, 
§ 16, provided: "MOTOR VEHICLE AC- 
QUISITION REVOLVING FUND — MO- 
TOR VEHICLE PURCHASES/RENOVA- 
TION. At least fifty percent (50%) of the 
general revenues and/or general improve- 
ment funds deposited into the Motor Ve- 



hicle Acquisition Revolving Fund shall be 
used for motor vehicle purchases and/or 
motor vehicle renovation costs for the De- 
partment of Arkansas State Police. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-1009 PUBLIC FINANCE 306 

19-5-1009. Miscellaneous Revolving Fund. 

A.C.R.C. Notes. Acts 2012, No. 286, law. 
§ 11, provided: "REIMBURSEMENT. The "The provisions of this section shall be 

Miscellaneous Revolving Fund shall be in effect only from July 1, 2012 through 

reimbursed in the manner provided by June 30, 2013." 

19-5-1011. Crime Information System Fund. 

(a)(1) The Crime Information System Fund shall consist of those 
special revenues as specified in §§ 19-6-301(14) and 19-6-301(235) and 
fifty percent (50%) of § 19-6-301(176) of the Revenue Classification 
Law, § 19-6-101 et seq., allocations of general revenues as authorized 
by the General Assembly, moneys transferred or deposited from the 
State Administration of Justice Fund, and such federal grants and aid 
or reimbursements as may be received. 

(2) The fund shall be used for the maintenance, operation, improve- 
ment, and necessary expenditures for administering the Arkansas 
Crime Information System. 

(b) The then-current year allocations of general revenues not used or 
needed for current year operations shall be transferred by the Chief 
Fiscal Officer of the State to the General Revenue Allotment Reserve 
Fund. 

(c) Beginning July 1, 2012, excluding the disposal fees that are to be 
deposited into the Marketing Board Fund under § 8-6-607(4), the first 
one hundred twenty-five thousand dollars ($125,000) of fees collected 
each fiscal year under § 8-6-607 shall be deposited into the State 
Treasury and credited to the Crime Information System Fund to be 
used exclusively for the scrap metal log book program. 

History. Acts 1973, No. 750, § 7; 1981, 1032, § 19; 2007, No. 1201, § 19; 2012, 

No. 938, § 8; A.S.A. 1947, § 13-523; Acts No. 283, § 11. 

1993, No. 1073, § 13; 1997, No. 1248, Amendments. The 2012 amendment 

§ 20; 1999, No. 1463, § 20; 2007, No. added (c). 

19-5-1020. Department of Human Services Renovation Fund. 

A.C.R.C. Notes. Acts 2012, No. 157, "(1) Federal reimbursement received 

§ 15, provided: "HUMAN SERVICES by the Department of Human Services 

RENOVATION FUND. Department of and deposited in the various fund ac- 

Human Services Renovation Fund. counts of the department; and 

"(a) There is established on the books of "(2) General revenues transferred from 

the Treasurer of State, Auditor of State, the Division of Youth Services, the Divi- 

and the Chief Fiscal Officer of the State a sion of Behavioral Health, and the Divi- 

fund to be known as the Department of sion of Developmental Disabilities Ser- 

Human Services Renovation Fund. vices for the purposes of repairing, 

"(b) This fund shall be used for con- renovating, equipping, acquiring and con- 
structing, acquiring, renovating, main- structing Department of Human Services 
taining, repairing, and equipping facili- facilities with an annual maximum of five 
ties of the Department of Human Services million dollars ($5,000,000). The projects 
and for paying disallowances by the fed- for which these transfers are authorized 
eral government. must be projects which were unantici- 

"(c) The fund shall consist of: pated during the preceding regular ses- 



307 



REVENUE STABILIZATION LAW 



19-5-1088 



sion of the Arkansas General Assembly 
and must be projects which, if not carried 
out in the interim period between regular 
sessions of the Arkansas General Assem- 
bly would cause greater harm to the facili- 
ties, clients or programs of the Depart- 
ment of Human Services than to wait 
until the next regular session. 

"(3) Other non-general revenue funds 
as may be available within the Depart- 
ment of Human Services that can be used 
for the purposes of this fund. 

"(d)(1) At the request of the Director of 
the Department of Human Services, and 
upon certification of the availability of 
such funds, the Chief Fiscal Officer of the 
State shall initiate the necessary transfer 
documents to reflect the transfer on the 
books of record of the Treasurer of State, 
the Auditor of State, the Chief Fiscal Of- 
ficer of the State, and the Department of 
Human Services. 

"(2) The Director of the Department of 
Human Services shall submit any trans- 
fer plan to and must receive approval of 
the plan from the Chief Fiscal Officer of 
the State, the Governor and the Arkansas 
Legislative Council prior to the effective 
date of the transfer. 

"(e) Provided, that any non-general 
revenue funding that may remain in the 
fund at the end of any fiscal year shall be 
carried over into the next fiscal year and 
all obligated general revenue funding that 
may remain in the fund at the end of any 



fiscal year shall be carried over into the 
next fiscal year to satisfy such legal and 
contractual obligations that have been en- 
tered into prior to the end of the fiscal 
year. 

"(f) Determining the amount of funds 
appropriated to a state agency is the pre- 
rogative of the General Assembly and is 
usually accomplished by delineating spe- 
cific line items and by identifying the 
appropriation and funding attached to 
that line item. The General Assembly has 
determined that the Department of Hu- 
man Services could be operated more effi- 
ciently if some flexibility is given to that 
agency. That flexibility is being accom- 
plished by providing transfer authority in 
subsection (d) of this section, and since the 
General Assembly has granted the agency 
broad powers under the transfer authority 
concept, it is both necessary and appropri- 
ate that the General Assembly maintain 
oversight of the utilization of the transfer 
authority by requiring prior approval of 
the Legislative Council in the utilization 
of this transfer authority. Therefore, the 
requirement of approval by the Legisla- 
tive Council is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council is ruled unconsti- 
tutional by a court jurisdiction, this entire 
section is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-1036. Research Development Fund. 



A.C.R.C. Notes. Acts 2012, No. 247, 
§20, provided: "BUILDING MAINTE- 
NANCE FUND. After the sum of 
$13,200,000 has been deposited into the 
Higher Education Building Maintenance 
Fund, the next $10,000,000 or so much as 



is collected, is to be transferred to the 
Research Development Fund there to be 
used as provided by law. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-1088. Bail Bondsman Board Fund. 



A.C.R.C. Notes. Acts 2012, No. 182, 
§ 4, provided: "FUND TRANSFER. The 
Professional Bail Bondsman Licensing 
Board, at the end of each fiscal year, shall 
transfer all but twenty-five percent (25%) 



of its fund balance to the General Revenue 
Fund Account in the State Treasury. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-5-1103 PUBLIC FINANCE 308 

Subchapter 11 — Trust Funds Continued 

SECTION. 

19-5-1103. Property Tax Relief Trust 
Fund. 



Effective Dates. Identical Acts 2012, 
Nos. 271 and 287, § 10: July 1, 2012. 



19-5-1103. Property Tax Relief Trust Fund. 

(a) There is created on the books of the Treasurer of State, the 
Auditor of State, and the Chief Fiscal Officer of the State a special 
revenue fund to be known as the "Property Tax Relief Trust Fund". 

(b) The fund shall consist of such revenues as generated by §§ 26- 
52-302(c), 26-52-317(c)(l)(B), 26-52-319(a)(3)(B), 26-53-107(c), 26-53- 
145(c)(1)(B), 26-53-148(a)(3)(B), 26-56-201(g)(l)(C), and 26-56- 
224(c)(2), and shall be used for such purposes as set out in § 26-26-310. 



History. Acts 2001, No. 1646, § 10 
2007, No. 110, § 7; 2009, No. 1440, § 3 
2009, No. 1441, § 3; 2012, No. 271, § 3 
2012, No. 287, § 3. 



Amendments. The 2012 amendment 
by identical acts Nos. 271 and 287 in- 
serted "26-56-201(g)(lXC)" in (b). 



Subchapter 12 — Miscellaneous Funds Continued 

SECTION. 

19-5-1227. Educational Adequacy Fund. 



Effective Dates. Identical Acts 2012, 
Nos. 271 and 287, § 10: July 1, 2012. 



19-5-1227. Educational Adequacy Fund. 

(a) There is created on the books of the Treasurer of State, the 
Auditor of State, and the Chief Fiscal Officer of the State a fund to be 
known as the "Educational Adequacy Fund". 

(b) After the Treasurer of State has made deductions from the 
revenues under § 19-5-203(b)(2)(A), the Educational Adequacy Fund 
shall consist of: 

(1) All net revenues collected due to enactments of the Eighty-Fourth 
General Assembly meeting in Second Extraordinary Session, unless a 
different distribution of those additional net revenues is otherwise 
provided in the act creating those additional net revenues; 



309 REVENUE CLASSIFICATION LAW 19-5-1227 

(2) The revenues credited to the Educational Adequacy Fund under 
§ 26-54-113(b)(2); 

(3) The revenues generated by §§ 26-52-302(d), 26-52-316, 26-52- 
317(c)(1)(C), 26-52-319(a)(3)(C), 26-53-107(d), 26-53-145(c)(l)(C), 26-53- 
148(a)(3)(C), 26-56-201(g)(l)(B), 26-56-224(c)(3), and 26-57- 
1002(d)(l)(A)(ii); and 

(4) Other revenues as provided by law. 

(c)(1) The Chief Fiscal Officer of the State will determine, from time 
to time, the amount of funds required from the Educational Adequacy 
Fund which, when added to other resources available to the Depart- 
ment of Education Public School Fund Account of the Public School 
Fund and the Department of Education Fund Account of the Education 
Fund, is needed to fulfill the financial obligation of the state to provide 
an adequate educational system as authorized by law and shall certify 
the amounts to the Treasurer of State. 

(2) At the end of each month, the Treasurer of State shall transfer all 
moneys available from the Educational Adequacy Fund to the Depart- 
ment of Education Public School Fund Account of the Public School 
Fund and to the Department of Education Fund Account of the 
Education Fund until the sum of all transfers from the Educational 
Adequacy Fund equals the amounts determined in subdivision (c)(1) of 
this section, there to be used as determined by law. 

(d) In the event the Chief Fiscal Officer of the State determines that 
the transfers from the Educational Adequacy Fund, when added to the 
other resources available to the Department of Education Public School 
Fund Account of the Public School Fund, are not sufficient to meet the 
state's financial obligation to provide an adequate educational system 
as authorized by law, the additional amount required shall be trans- 
ferred from the other funds and fund accounts, except the Educational 
Facilities Partnership Fund Account, within §§ 19-5-402 and 19-5- 
404(a) [repealed] based upon the proportion that each of the remaining 
fund and fund accounts, excluding the Educational Facilities Partner- 
ship Fund Account, bears to the total of the remaining funds and fund 
accounts in §§ 19-5-402 and 19-5-404(a) [repealed]. 

History. Acts 2003 (2nd Ex. Sess.), No. 1440, § 5; 2009, No. 1441, § 5; 2012, No. 

94, § 5; 2003 (2nd Ex. Sess.), No. 107, 271, § 4; 2012, No. 287, § 4. 

§ 11; 2003 (2nd Ex. Sess.), No. 108, § 1; Amendments. The 2012 amendment 

2005, No. 2131, § 35; 2006 (1st Ex. Sess.), by identical acts Nos. 271 and 287 in- 

No. 20, § 10; 2007, No. 110, § 8; 2009, No. serted "26-56-20 1(g)(1)(B)" in (b)(3). 

CHAPTER 6 
REVENUE CLASSIFICATION LAW 

subchapter. 
4. Special Revenue Funds. 



19-6-410 PUBLIC FINANCE 310 

Subchapter 4 — Special Revenue Funds 

section. Systems Improvement 

19-6-450. Individual Sewage Disposal Fund. 

19-6-410. Oil and Gas Commission Fund. 

A.C.R.C. Notes. Acts 2012, No. 272, up to $750,000 per year on his or her 

§ 6, provided: "FUND TRANSFER. The books and the books of the State Trea- 

Oil and Gas Commission, after receiving surer and the Auditor of the State from 

review from the Chief Fiscal Officer of the the Oil and Gas Commission Fund to the 

State and the Legislative Council, may Abandoned and Orphaned Well Plugging 

request the Chief Fiscal Officer to transfer Fund." 

19-6-450. Individual Sewage Disposal Systems Improvement 
Fund. 

The Individual Sewage Disposal Systems Improvement Fund shall 
consist of that portion of those special revenues as specified in § 19-6- 
301(58) there to be used by the Environmental Health Services Division 
of the Department of Health for, and in the manner recommended by, 
the Individual Sewage Disposal Systems Advisory Committee for 
implementation of the utilization and application of alternate and 
experimental individual sewage disposal systems as set out in the 
Arkansas Sewage Disposal Systems Act, § 14-236-101 et seq. 

History. Acts 1973, No. 808, § 14; Publisher's Notes. This section is be- 

1985, No. 65, § 7; A.S.A. 1947, § 13- ing set out to correct an agency name and 

503.13; Acts 1989, No. 551, § 6; 1993, No. a statutory reference. 
1072, § 7. 

CHAPTER 10 
CLAIMS AGAINST THE STATE 

Subchapter 2 — Arkansas State Claims Commission 

19-10-212. Reports of agency liability. 

A.C.R.C. Notes. Acts 2012, No. 153, lative Council. Such report shall include a 

§ 15, provided: "CLAIMS AWARD RE- concise statement of facts with an expla- 

PORTING. It is the intent of the General nation of the agency's liability. Provided 

Assembly that when any state agency, further, such report shall be filed with the 

board, commission or institution of higher Litigation Subcommittee within thirty 

education admits liability to a claim filed (30) days after the claim has been adjudi- 

with the State Claims Commission and cated by the State Claims Commission." 

the claim involves a contract with a state Acts 2012, No. 259, § 14, provided: 

agency, board, commission or institution "CLAIMS AWARD REPORTING. It is the 

of higher education or the claim exceeds intent of the General Assembly that when 

twelve thousand five hundred dollars any state agency, board, commission or 

($12,500) that such agency, board, com- institution of higher education admits li- 

mission or institution of higher education ability to a claim filed with the State 

file a written report thereof to the Litiga- Claims Commission and the claim in- 

tion Subcommittee of the Arkansas Legis- volves a contract with a state agency, 



311 



CLAIMS AGAINST THE STATE 



19-10-213 






board, commission or institution of higher 
education or the claim exceeds twelve 
thousand five hundred dollars ($12,500) 
that such agency, board, commission or 
institution of higher education file a writ- 
ten report thereof to the Litigation Sub- 
committee of the Arkansas Legislative 

19-10-213. Agency to pay claim. 

A.C.R.C. Notes. Acts 2012, No. 56, § 4, 
provided: "EMPLOYMENT COMPENSA- 
TION CLAIMS. The Clerk of the State 
Claims Commission shall not distribute 
any warrants prepared under the provi- 
sions of this Act for awards made by the 
Arkansas State Claims Commission for 
employment compensation claims. Upon 
the award by the State Claims Commis- 
sion of an employment compensation 
claim, the Clerk of the State Claims Com- 
mission shall notify the affected state 
agency and the Department of Finance 
and Administration — Office of Personnel 
Management of such amounts that are 
due and payable. The affected state 
agency shall then process the award 
through the State Mechanized Payroll 
System. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 153, § 13, provided: 
"CLAIMS FROM CASH FUNDS. In the 
event that any claim authorized herein is 
determined to be a valid claim against the 
State and the claim is to be paid from 
funds not in the State Treasury, the Clerk 
of the State Claims Commission shall no- 
tify the agency against which the claim is 
to be charged of the amount of such 
claims. Upon receipt of such notification, 
the state agency shall forthwith deliver a 
check to the Clerk of the State Claims 
Commission who shall deposit the same 
as a non-revenue receipt into the Miscel- 
laneous Revolving Fund from which he 
shall disburse the amount of the claim to 
the claimant." 

Acts 2012, No. 153, § 14, provided: "EM- 
PLOYMENT COMPENSATION 
CLAIMS. The Clerk of the State Claims 
Commission shall not distribute any war- 
rants prepared under the provisions of 
this Act for awards made by the Arkansas 
State Claims Commission for employment 
compensation claims. Upon the award by 



Council. Such report shall include a con- 
cise statement of facts with an explana- 
tion of the agency's liability. Provided fur- 
ther, such report shall be filed with the 
Litigation Subcommittee within thirty 
(30) days after the claim has been adjudi- 
cated by the State Claims Commission." 



the State Claims Commission of an em- 
ployment compensation claim, the Clerk 
of the State Claims Commission shall no- 
tify the affected state agency and the 
Department of Finance and Administra- 
tion — Office of Personnel Management of 
such amounts that are due and payable. 
The affected state agency shall then pro- 
cess the award through the State Mecha- 
nized Payroll System." 

Acts 2012, No. 259, § 10, provided: "AR- 
KANSAS DEPARTMENT OF HUMAN 
SERVICES CLAIMS. For any claims in 
this Act appropriated to the Department 
of Human Services, the Clerk of the State 
Claims Commission shall consult with the 
Department of Human Services and the 
Chief Fiscal Officer of the State to deter- 
mine the division and funds to which 
liability should be assigned and from 
which the warrants shall be drawn. The 
Clerk of the State Claims Commission 
shall initiate the appropriate transfers as 
may be required and as approved by the 
Chief Fiscal Officer of the State." 

Acts 2012, No. 259, § 11, provided: "AR- 
KANSAS DEPARTMENT OF HEALTH 
CLAIMS. For any claims in this Act ap- 
propriated to the Department of Health, 
the Clerk of the State Claims Commission 
shall consult with the Department of 
Health and the Chief Fiscal Officer of the 
State to determine the division and funds 
to which liability should be assigned and 
from which the warrants shall be drawn. 
The Clerk of the State Claims Commis- 
sion shall initiate the appropriate trans- 
fers as may be required and as approved 
by the Chief Fiscal Officer of the State." 

Acts 2012, No. 259, § 12, provided: 
"CLAIMS FROM CASH FUNDS. In the 
event that any claim authorized herein is 
determined to be a valid claim against the 
State and the claim is to be paid from 
funds not in the State Treasury, the Clerk 
of the State Claims Commission shall no- 
tify the agency against which the claim is 



19-10-213 



PUBLIC FINANCE 



312 



to be charged of the amount of such 
claims. Upon receipt of such notification, 
the state agency shall forthwith deliver a 
check to the Clerk of the State Claims 
Commission who shall deposit the same 
as a non-revenue receipt into the Miscel- 
laneous Revolving Fund from which he 
shall disburse the amount of the claim to 
the claimant." 

Acts 2012, No. 259, § 13, provided: "EM- 
PLOYMENT COMPENSATION 
CLAIMS. The Clerk of the State Claims 
Commission shall not distribute any war- 
rants prepared under the provisions of 



this Act for awards made by the Arkansas 
State Claims Commission for employment 
compensation claims. Upon the award by 
the State Claims Commission of an em- 
ployment compensation claim, the Clerk 
of the State Claims Commission shall no- 
tify the affected state agency and the 
Department of Finance and Administra- 
tion — Office of Personnel Management of 
such amounts that are due and payable. 
The affected state agency shall then pro- 
cess the award through the State Mecha- 
nized Payroll System." 



CHAPTER 12 
TOBACCO SETTLEMENT PROCEEDS ACT 



A.C.R.C. Notes. Acts 2012, No. 52, § 8, 
provided: "POSITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 
replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 

"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 
be made available to all new hire and 
current positions paid from the proceeds 
of the Tobacco Settlement by the Tobacco 
Settlement Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this Section 
shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

Acts 2012, No. 87, § 6, provided: "PO- 
SITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 



replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 

"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 
be made available to all new hire and 
current positions paid from the proceeds 
of the Tobacco Settlement by the Minority 
Health Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this Section 
shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 192, § 6, provided: "PO- 
SITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 
replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 

"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 
be made available to all new hire and 
current positions paid from the proceeds 



313 



TOBACCO SETTLEMENT PROCEEDS ACT 



of the Tobacco Settlement by the Tobacco 
Settlement Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this Section 
shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 206, § 5, provided: "PO- 
SITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 
replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 

"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 
be made available to all new hire and 
current positions paid from the proceeds 
of the Tobacco Settlement by the Tobacco 
Settlement Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this Section 
shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 207, § 9, provided: "PO- 
SITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 
replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 

"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 



be made available to all new hire and 
current positions paid from the proceeds 
of the Tobacco Settlement by the Tobacco 
Settlement Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this Section 
shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 217, § 6, provided: "PO- 
SITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 
replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 

"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 
be made available to all new hire and 
current positions paid from the proceeds 
of the Tobacco Settlement by the Tobacco 
Settlement Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this Section 
shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 264, § 6, provided: "PO- 
SITIONS. 

"(a) Nothing in this act shall be con- 
strued as a commitment of the State of 
Arkansas or any of its agencies or institu- 
tions to continue funding any position 
paid from the proceeds of the Tobacco 
Settlement in the event that Tobacco 
Settlement funds are not sufficient to fi- 
nance the position. 

"(b) State funds will not be used to 
replace Tobacco Settlement funds when 
such funds expire, unless appropriated by 
the General Assembly and authorized by 
the Governor. 



19-12-116 



PUBLIC FINANCE 



314 



"(c) A disclosure of the language con- 
tained in (a) and (b) of this Section shall 
be made available to all new hire and 
current positions paid from the proceeds 
of the Tobacco Settlement by the Tobacco 
Settlement Commission. 

"(d) Whenever applicable the informa- 
tion contained in (a) and (b) of this section 



shall be included in the employee hand- 
book and/or Professional Services Con- 
tract paid from the proceeds of the To- 
bacco Settlement. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 1 — Tobacco Settlement Proceeds Act 



A.C.R.C. Notes. Acts 2012, No. 264, 
§ 10, provided: "LEGISLATIVE INTENT. 
It is the intent of the General Assembly 
that any funds disbursed under the au- 
thority of the appropriation contained in 
this act shall be in compliance with the 
stated reasons for which this act was 
adopted, as evidenced by Initiated Act 1 of 
2000, the Agency Requests, Executive 
Recommendations and Legislative Rec- 



ommendations contained in the budget 
manuals prepared by the Department of 
Finance and Administration, letters, or 
summarized oral testimony in the official 
minutes of the Arkansas Legislative 
Council or Joint Budget Committee which 
relate to its passage and adoption. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-12-116. Establishment and administration of Medicaid Ex- 
pansion Program. 



A.C.R.C. Notes. Acts 2012, No. 52, § 6, 
provided: "MEDICAID EXPANSION 
PROGRAM — PAYING ACCOUNTS. The 
Medicaid Expansion Program as estab- 
lished by Initiated Act 1 of 2000 shall be a 
separate and distinct component embrac- 
ing (1) expanded Medicaid coverage and 
benefits to pregnant women; (2) expanded 
inpatient and outpatient hospital reim- 
bursements and benefits to adults aged 
nineteen (19) to sixty-four (64); (3) ex- 
panded non-institutional coverage and 
benefits to adults aged 65 and over; and 
(4) creation and provision of a limited 
benefit package to adults aged nineteen 



(19) to sixty-four (64), to be administered 
by the Department of Human Services. 
Separate Paying Accounts shall be estab- 
lished for the Medicaid Expansion Pro- 
gram as designated by the Chief Fiscal 
Officer of the State, to be used exclusively 
for the purpose of drawing down federal 
funds associated with the federal share of 
expenditures and for the state share of 
expenditures transferred from the Medic- 
aid Expansion Program Account or for any 
other appropriate state match funds. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-12-117. Establishment of the Arkansas Tobacco Settlement 
Commission. 



A.C.R.C. Notes. Acts 2012, No. 217, 
§ 3, provided: "INDEPENDENT MONI- 
TORING AND EVALUATION. The Ar- 
kansas Tobacco Settlement Commission 
shall file a quarterly progress report to the 
Public Health, Welfare and Labor Com- 
mittees and shall hire an independent 
third party to perform monitoring and 



evaluation of program expenditures made 
from tobacco settlement funds. This inde- 
pendent third party shall have appropri- 
ate experience in health, preventive re- 
sources, health statistics and evaluation 
expertise. The third party retained to per- 
form such services shall prepare a bien- 
nial report to be delivered to the General 



315 



HEALTH FACILITIES AND SERVICES GENERALLY 19-12-118 



Assembly and the Governor by each Au- 
gust 1 preceding a regular session of the 
General Assembly. The report shall be 
accompanied by a recommendation from 
the Arkansas Tobacco Settlement Com- 



mission as to the continued funding for 
each program. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



19-12-118. Monitoring and evaluation of programs. 



A.C.R.C. Notes. Acts 2012, No. 217, 
§ 3, provided: "INDEPENDENT MONI- 
TORING AND EVALUATION. The Ar- 
kansas Tobacco Settlement Commission 
shall file a quarterly progress report to the 
Public Health, Welfare and Labor Com- 
mittees and shall hire an independent 
third party to perform monitoring and 
evaluation of program expenditures made 
from tobacco settlement funds. This inde- 
pendent third party shall have appropri- 
ate experience in health, preventive re- 
sources, health statistics and evaluation 



expertise. The third party retained to per- 
form such services shall prepare a bien- 
nial report to be delivered to the General 
Assembly and the Governor by each Au- 
gust 1 preceding a regular session of the 
General Assembly. The report shall be 
accompanied by a recommendation from 
the Arkansas Tobacco Settlement Com- 
mission as to the continued funding for 
each program. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



TITLE 20 
PUBLIC HEALTH AND WELFARE 

SUBTITLE 2. HEALTH AND SAFETY 

CHAPTER 9 
HEALTH FACILITIES AND SERVICES GENERALLY 



A.C.R.C. Notes. Acts 2012, No. 157, 
§ 17, provided: "NURSING/DIRECT 
CARE EDUCATION STIPEND PRO- 
GRAM. Special provision for a Nursing/ 
Direct Care Education Stipend Program 
for the Department of Human Services is 
hereby authorized to pay from State and 
Federal Funds appropriated in each divi- 
sion Act. This program is for eligible nurs- 
ing students who are attending accredited 
nursing institutions to become Registered 
or Licensed Practical Nurses, as well as 
Certified Nursing Assistants, Residential 
Care Assistants, Residential Care Techni- 
cians, Residential Care Supervisors and 
Behavioral Health Aides. 

"The stipend is $5,000 per person per 
year. Any student who is awarded and 
accepts a stipend is under employment 
commitment to the respective DHS Divi- 
sion and is required to work for that 
division, in a full-time employee status 
effective immediately upon graduation. 



The student employment commitment is 
equal to the number of years the stipend 
was awarded and accepted. In the event of 
Employee/Student default of the employ- 
ment commitment, the Employee/Student 
will be considered in breach of contract 
and repayment of the stipend will be re- 
quired as specified in the Stipend Con- 
tract. 

"Each division participating in the Edu- 
cation Stipend Program shall determine 
on an annual basis, the number of student 
stipends available. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 280, § 26, provided: 
"NURSING/DIRECT CARE EDUCA- 
TION STIPEND PROGRAM. Special pro- 
vision for a Nursing/Direct Care Educa- 
tion Stipend Program for the Arkansas 
Department of Health (ADH) is hereby 
authorized to pay from funds appropri- 



19-12-118 



PUBLIC HEALTH AND WELFARE 



316 



ated in this Act. This program is for eli- 
gible nursing students who are attending 
accredited nursing institutions to become 
Registered or Licensed Practical Nurses. 

"The stipend is five thousand dollars 
($5,000) per person per year. Any student 
who is awarded and accepts a stipend is 
under an employment commitment to the 
ADH and is required to work in a full-time 
employee status effective immediately 
upon graduation. The student employ- 
ment commitment is equal to the number 
of years the stipend was awarded and 
accepted. In the event of Employee/Stu- 
dent default of the employment commit- 
ment, the Employee/Student will be con- 
sidered in breach of contract and 
repayment of the stipend will be required 
as specified in the Stipend Contract. 

"The ADH shall determine, on an an- 
nual basis, the number of student sti- 
pends available due to the availability of 
funds and the need for direct care ser- 
vices. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 280, § 28, provided: 
"COMMUNITY HEALTH CENTERS. Al- 
location of state funding to Community 
Health Centers shall be prioritized to en- 
sure that uninsured, under-insured, and 
underserved Arkansans' receive needed 
services in order to improve their health, 
with this funding to preserve and 
strengthen Community Health Centers 
and increase Arkansans access to quality 
primary and preventive health care. The 
Department of Health shall ensure that 
any Community Health Center that re- 
ceives funding through this Act shall first 
seek to include, in accordance with federal 
rule and guidance, as many local provid- 
ers of health care services as possible, 
such as dental, pharmacy, mental health, 
and other ancillary services, within each 
Community Health Center's service area, 
to participate in the provision of such 



services as a contractor at a fair, reason- 
able prevailing rate. Community Health 
Centers will seek local providers, commu- 
nity, city, county, and state partners to 
participate in the planning for the devel- 
opment, and, as an employee or contrac- 
tor, in the implementation of a new Com- 
munity Health Center in an area of 
documented unmet need. In addition to 
reasonable prices, the availability and 
service quality levels provided by the pri- 
vate provider must meet or exceed the 
level of service quality provided, as estab- 
lished by the respective governing board, 
at similarly situated Community Health 
Centers through the state and at all times 
meet professional standards of compe- 
tence and quality. Annually, the Depart- 
ment of Health shall require from the 
Community Health Centers the submis- 
sion of performance indicators, to be de- 
termined by the Department of Health, 
reflecting, at a minimum, a listing of all 
services provided, fee schedules based on 
local prevailing rates and actual costs, 
sliding fee scales, and uniform data sets 
which identify the number of uninsured, 
Medicaid and Medicare patients and those 
patients which are below and above 200% 
of the federal poverty level. Local private 
providers within the service area that 
may have been significantly impacted by 
these services will be determined by the 
Department of Health. The Department of 
Health shall institute a procurement pro- 
cess for the allocation of funding provided 
through this Act, detailing that these and 
other requirements are factored into the 
allocation of any funding provided to Com- 
munity Health Centers. In the implemen- 
tation of this special language, the De- 
partment of Health is permitted, at its 
discretion, to allow individual applicants 
an implementation period of up to 90 days 
from the effective date of individual agree- 
ments to satisfy the requirements for pri- 
vate provider collaboration as specified 
above." 



317 LONG-TERM CARE FACILITIES AND SERVICES 20-10-1204 

Subchapter 3 — Hospitals, Clinics, Etc. — Miscellaneous Provisions 

20-9-302. Abortion clinics, health centers, etc. 

A.C.R.C. Notes. Acts 2012, No. 246, cordance with Arkansas Code Annotated 

§ 28, provided: "STATE FUND RESTRIC- §6-18-703. 

TIONS. No state funds shall be used for "The provisions of this section shall be 

abortion referral in public schools, or for in effect only from July 1, 2012 through 

abortion services. Funds shall be ex- June 30, 2013." 

pended in accordance with Arkansas Code Acts 2012, No. 280, § 29, provided: 

Annotated § 6-18-703. "STATE FUND RESTRICTIONS. No 

"The provisions of this section shall be state funds shall be used for abortion 

in effect only from July 1, 2012 through referral in public schools, or for abortion 

June 30, 2013." services. Funds shall be expended in ac- 

Acts 2012, No. 269, § 29, provided: cordance with Arkansas Code Annotated 

"STATE FUND RESTRICTIONS. No § 6-18-703. 

state funds shall be used for abortion "The provisions of this section shall be 

referral in public schools, or for abortion in effect only from July 1, 2012 through 

services. Funds shall be expended in ac- June 30, 2013." 

Subchapter 5 — Peer Review Committees 

20-9-501. Definition. 

CASE NOTES 

Applicability. review of competency as part of the cre- 

Arkansas Supreme Court declined to dentialing process to assure that health 

create a new tort for negligent credential- services were being performed in accor- 

ing of a physician; under subdivision dance with the appropriate standard of 

(2)(A) of this section, a statutory system care. Paulino v. QHG of Springdale, Inc., 

was in place for the initial and ongoing 2012 Ark. 55, — S.W.3d — (2012). 

CHAPTER 10 
LONG-TERM CARE FACILITIES AND SERVICES 

Subchapter 12 — Protection of Long-Term Care Facility Residents 

20-10-1204. Residents' rights. 

CASE NOTES 

Dignity. word dignity, simply because it was part of 

Trial court erred in a medical malprac- the statute, was not complex and did not 

tice action in permitting a personal repre- mean something different than its ordi- 

sentative's expert to testify as to the nary and usually accepted meaning in 

meaning of dignity, as it was used in common language. Bedell v. Williams, 

subdivision (a)(21) of this section; the 2012 Ark. 75, — S.W.3d — (2012). 



20-10-1209 PUBLIC HEALTH AND WELFARE 

20-10-1209. Civil enforcement. 



318 



CASE NOTES 



Analysis 



Directed Verdict. 
Jury Instructions. 

Directed Verdict. 

Directed verdict was appropriate in a 
case alleging a violation of the Arkansas 
Resident's Rights Act, even though it was 
not subsumed in a medical malpractice 
claim, because co- administrators made 
only conclusory arguments that they prof- 
fered sufficient evidence relating to proxi- 
mate cause. They did not point to any 
evidence linking the alleged violations to a 



resident's death or injuries. Smith v. 
Heather Manor Care Ctr., Inc., 2012 Ark. 
App. 584, — S.W.3d — , 2012 Ark. App. 
LEXIS 704 (Oct. 24, 2012). 

Jury Instructions. 

Trial court erred in a medical malprac- 
tice action in not including in an instruc- 
tion to the jury the causation element 
required in subsection (a) of this section 
when damages were sought for a violation 
of a nursing home resident's rights. Bedell 
v. Williams, 2012 Ark. 75, — S.W.3d — 
(2012). 



Subchapter 22 — Long-Term Care Quality Assurance 
20-10-2204. Proceedings and records confidential. 

CASE NOTES 



Certiorari. 

Petition for a writ of certiorari was not 
granted in two malpractice cases because 
it was sought as a remedy for an alleged 
error in a discovery order relating to a 
subpoena duces tecum, despite the claim 



of privilege under subdivision (a)(2)(A) of 
this section, 42 U.S.C.S. § 1320c-9(a), and 
42 U.S.C.S. § 1396r(b)(l)(B). An appeal 
provided an adequate remedy. Ark. 
Found, v. Santarsiero, 2012 Ark. 372, — 
S.W.3d — (2012). 



CHAPTER 21 
RADIATION PROTECTION 

Subchapter 5 — Nuclear Planning and Response Grants 

20-21-504. Disbursal of funds. 



A.C.R.C. Notes. Acts 2012, No. 280, 
§ 21, provided: "NUCLEAR DISASTER 
PLANNING GRANTS. The funds appro- 
priated for Grants for Nuclear Planning 
shall be disbursed to those counties in this 
State which are required by state or fed- 
eral regulation to maintain a Radiological 
Response Plan because of their close prox- 
imity to a nuclear electricity generating 
facility, and shall be issued solely for the 
purpose of defraying the cost of preparing 
for and participating in actual nuclear 
disaster incidents or practice nuclear di- 
saster exercises. Each county shall be eli- 



gible for that proportion of these funds as 
is determined fair and necessary under 
guidelines to be developed by the Arkan- 
sas Department of Health. However, a 
minimum of $5,000 per county of said 
funds shall be utilized to support and 
operate a County Emergency Manage- 
ment Office. These county offices shall be 
prepared to respond to any Arkansas 
Nuclear I emergency. These funds shall be 
equally distributed to each Emergency 
Management Office in the following coun- 
ties: Pope County, Johnson County, Yell 
County, Conway County and Logan 



319 



MISCELLANEOUS PROVISIONS 



20-27-1501 



County. 

"The funds appropriated for Grants for 
Nuclear Planning shall be distributed in 
quarterly installments by the Arkansas 
Department of Health to the Arkansas 
Department of Emergency Management 
for the sole purpose of defraying costs 
associated with preparing for and partici- 



pating in actual nuclear disaster incidents 
or practice nuclear disaster emergency 
exercises involving nuclear electricity 
generating facilities in this State. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 27 
MISCELLANEOUS HEALTH AND SAFETY PROVISIONS 



A.C.R.C. Notes. Acts 2012, No. 280, 
§ 25, provided: "DEVELOPMENT RE- 
STRICTIONS. In reviewing the impact on 
public health and safety of a plan for 
improvements to a public water system or 
public sewer system through the addition 
of distribution lines to a subdivision or 
commercial development, the Division of 



Engineering of the Department of Health 
shall consider the effect of the plan on 
future development or zoning of adjoining 
properties. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 10 — Removal of Asbestos Material 

20-27-1004. Powers and duties of the Arkansas Department of 
Environmental Quality. 



A.C.R.C. Notes. Acts 2012, No. 274, 
§ 36, provided: "ADEQ ASBESTOS PRO- 
GRAM. The fees collected pursuant to 
Arkansas Code 20-27-1004(5) shall be 
used by the department to fund opera- 
tional expenses and to provide and train 
personnel to administer an asbestos pro- 
gram, as funding is available, including: 

"(a) Personnel dedicated to issue cer- 
tificates and licenses to qualified persons/ 
companies, to perform audit of trainers, 
and to regularly update the ADEQ web 
page providing a listing of asbestos li- 
censed parties; 



"(b) Personnel who are trained as as- 
bestos supervisors as defined by Arkansas 
Code 20-27-1003 and Arkansas Pollution 
Control and Ecology Commission Regula- 
tion No. 21 to approve asbestos Notices of 
Intent, perform and coordinate asbestos 
inspections, conduct enforcement actions, 
and provide regulatory compliance infor- 
mation to assist the regulated community. 
Asbestos inspectors shall have personal 
protective equipment when needed to en- 
ter a regulated area; and 

"(c) Other personnel as necessary to 
administer the asbestos program." 



Subchapter 15 — Body Piercing, Branding, and Tattooing 



20-27-1501. Definitions. 



RESEARCH REFERENCES 



ALR. Regulation of Business of Tattoo- 
ing. 67 A.L.R.6th 395. 



20-27-1502 PUBLIC HEALTH AND WELFARE 320 

20-27-1502. Unlawful to perform body art on a person under 
eighteen years of age. 

RESEARCH REFERENCES 

ALR. Regulation of Business of Tattoo- 
ing. 67 A.L.R.6th 395. 

20-27-1503. Department of Health to license, regulate, and in- 
spect for health hazards. 

RESEARCH REFERENCES 

ALR. Regulation of Business of Tattoo- 
ing. 67 A.L.R.6th 395. 

SUBTITLE 3. MENTAL HEALTH 

CHAPTER 47 
TREATMENT OF THE MENTALLY ILL 

Subchapter 2 — Commitment and Treatment 

20-47-204. Voluntary admissions. 

CASE NOTES 

Change of Status. her involuntary status, plaintiff adminis- 

Defendant state health care profession- tratrix of her estate's Due Process claim 

als owed no Fourteenth Amendment Due failed because upon being discovered, she 

Process-level duty of care to a voluntary was no different than any unconscious 

mental health facility patient, and even if patient in an emergency room and simple 

her removal from suicide watch 3 days or professional negligence standards ap- 

before she hanged herself and subdivision plied. Shelton v. Ark. Dep't of Human 

(2) of this section and § 20-47-210(c), gave Servs., 677 F.3d 837 (8th Cir. 2012). 

20-47-207. Involuntary admission — Original petition. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- Sexually Dangerous Persons. 56 
cation of Overt Act Requirement of State A.L.R.6th 647. 
Statutes Providing for Commitment of 



321 TREATMENT OF DEVELOPMENTALLY DISABLED 20-48- 105 

20-47-210. Immediate confinement — Initial evaluation and 
treatment. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- Sexually Dangerous Persons. 56 
cation of Overt Act Requirement of State A.L.R.6th 647. 
Statutes Providing for Commitment of 

CASE NOTES 

Due Process. ministratrix of her estate's Due Process 

Defendant state health care profession- claim failed because upon being discov- 

als owed no Fourteenth Amendment Due ered, she was no different than any uncon- 

Process-level duty of care to a voluntary scious patient in an emergency room and 

mental health facility patient, and even if simple or professional negligence stan- 

her removal from suicide watch 3 days dards applied. Shelton v. Ark. Dep't of 

before she hanged herself and § 20-47- Human Servs., 677 F.3d 837 (8th Cir. 

204(2) and subsection (c) of this section 2012) 
gave her involuntary status, plaintiff ad- 

20-47-215. Additional periods of involuntary admission — Peti- 
tions — Hearing. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- Sexually Dangerous Persons. 56 
cation of Overt Act Requirement of State A.L.R.6th 647. 
Statutes Providing for Commitment of 

CHAPTER 48 
TREATMENT OF THE DEVELOPMENTALLY DISABLED 

Subchapter 1 — General Provisions 

20-48-105. Nonprofit community programs — Extension or ex- 
pansion of services. 

A.C.R.C. Notes. Acts 2012, No. 219, Services are quasi-governmental instru- 
§ 12, provided: "DEVELOPMENTAL mentalities of the state which provide 
DISABILITIES — GRANTS TO COM- supports and services to individuals who 
MUNITY BASED PROVIDERS. Funds have a developmental disability or delay, 
allocated under the appropriation for com- who would otherwise require supports 
munity-based services, for Grants to Com- and services through state-operated pro- 
muni ty Providers, in the Developmental grams and facilities owned by the State of 
Disabilities Services — Grants-in-Aid ap- Arkansas. When DDS licensed providers 
propriation in this act shall be used only are involved in delivering services which 
to provide services through private com- are Medicaid reimbursable, they must en- 
munity based services licensed or certified roll as a provider with the Arkansas Med- 
by the Arkansas Division of Developmen- icaid Program and must bill the Arkansas 
tal Disabilities Services (DDS). Non-profit Medicaid Program for all covered services 
community-based programs licensed by for eligible individuals, 
the Division of Developmental Disabilities "Services which are covered by the Ar- 



20-48-105 



PUBLIC HEALTH AND WELFARE 



322 



kansas State Medicaid Program or under 
the Alternative Community Services 
Waiver Program (ACS) will be utilized to 
the maximum extent possible for any in- 
dividual who is eligible for Medicaid cov- 
erage. It is the intent of this section that 
DDS, as a general policy, maximize the 
use of Medicaid funding available for ap- 
propriate services. 

"The State shall require each provider 
funded from this Appropriation for com- 
munity based services, including funding 
from the Grants/Patient Services Line, in 
the Developmental Disabilities Services 

— Operations appropriation, or from the 
Grants to Community Providers Line, in 
the Developmental Disabilities Services 

— Grants-in-Aid appropriation, to screen 
each individual to whom services are pro- 
vided for a determination of eligibility or 
ineligibility for Medicaid coverage within 
thirty days of the first date that services 
are provided. It is the intent of this section 
to insure that wherever possible and ap- 
propriate, Medicaid funds are utilized for 
covered or waivered services to individu- 
als who are eligible for coverage under the 
Arkansas Medicaid Program or the ACS 
Waiver. 

"Nothing in this Act shall prevent the 
Division or any provider from extending 
emergency services when appropriate 
measures have been taken in a timely 
manner to secure Medicaid eligibility. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Acts 2012, No. 219, § 14, provided: 
"GRANTS IN AID — CONDITIONS FOR 
RECEIVING FUNDS. Private non-profit 
community-based programs licensed by 
the Department of Human Services, De- 
velopmental Disabilities Services, are eli- 
gible to receive funds appropriated for 
Grants to Community Providers in the 
Developmental Disabilities Services — 
Grants-in-Aid appropriation of this Act, 
and as a condition of receiving such funds 
they shall: 

"1. Meet minimum standards of perfor- 
mance in the delivery of services to people 
with disabilities as defined by the Depart- 
ment of Human Services, Developmental 
Disabilities Services. 

"2. Supply statistical and financial data 
to the Department of Human Services, 
Developmental Disabilities Services. 

"3. Establish and maintain a sound fi- 
nancial management system in accor- 
dance with guidelines as set forth by the 
Department of Human Services. 

"4. Establish and maintain community 
support programs designed to provide co- 
ordinated care and treatment to ensure 
ongoing involvement and individualized 
services for persons with disabilities. Ev- 
ery community support program shall 
provide services for persons with disabili- 
ties who reside within the respective area 
of the program. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 4 — Human Development Centers Generally 



A.C.R.C. Notes. Acts 2012, No. 219, 
§ 13, provided: "DEVELOPMENTAL 
DISABILITIES — VOCATIONAL 
TRAINEES. The Division of Developmen- 
tal Disabilities Services of the Depart- 
ment of Human Services is hereby autho- 
rized to provide employment 
opportunities for people with developmen- 
tal disabilities residing at the Human 
Development Centers who work less than 
a competitive employment level. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 219, § 16, provided: 
"HUMAN DEVELOPMENT CENTERS 
AND COMMUNITY PROVIDERS. 

"(A) The Developmental Disabilities 



Services Board or the Department of Hu- 
man Services shall not close any of the 
state administered Human Development 
Centers which are located at Conway, 
Arkadelphia, Jonesboro, Booneville, and 
Warren. 

"(B) The Department of Human Ser- 
vices shall continue to accept clients for 
whom it has determined that therapy and 
residential services are needed at state 
administered Human Development Cen- 
ters and Community Programs licensed 
by DDS shall continue to accept clients for 
whom it has been determined in accor- 
dance with federal law that are in need of 
services in the community. 

"(C) Except for use as federal matching 
funds, no funds for community based ser- 



323 



TREATMENT OF DEVELOPMENTALLY DISABLED 20-48-5 11 



vices licensed by DDS shall be transferred 
from Grants to Community Providers line 
item of the Developmental Disabilities 
Services — Grants-in-Aid appropriation 
unless the transfer(s) directly benefit(s) 
community based services for persons 
with developmental disabilities or from 
the appropriation for the Human Develop- 
ment Centers unless the transfer(s) di- 
rectly benefit(s) the Human Development 
Centers. 

"(D) Nor shall any general revenue 
funding as of July 1, 2012 from the Grants 
to Community Providers line item of the 



Developmental Disabilities Services — 
Grants-in-Aid appropriation for persons 
with developmental disabilities or from 
any other general revenues as of July 1, 
2012, applied as federal matching funds 
for community based services licensed by 
DDS on July 1, 2012 be reduced below the 
approved funding level on July 1, 2012; 
nor shall the general revenues applied as 
federal matching funds for the Human 
Development Centers be reduced below 
the approved funding level on July 1, 
2012." 



Subchapter 5 — Human Development Centers — Property and 

Finances 



20-48-511. Developmental disabilities — Timber sales proceeds 
— Capital improvements and equipment. 



A.C.R.C. Notes. Acts 2012, No. 218, 
§ 12, provided: "YOUTH SERVICES — 
TIMBER SALES PROCEEDS — CAPI- 
TAL IMPROVEMENTS AND EQUIP- 
MENT The Division of Youth Services is 
authorized to use the administrative op- 
erating account for capital improvements 
to the physical plant and for the purchase 
of capital equipment by the Mansfield 
Youth Services Facility operated by the 
Department of Human Services, Division 
of Youth Services. The funds shall be held 
by the Department of Human Services, 
Division of Youth Services from the pro- 
ceeds of the sale of timber that may be 
harvested from land owned by the Divi- 
sion of Youth Services. All funds deposited 
and all expenses shall be tracked sepa- 
rately. The harvesting of timber is specifi- 
cally authorized to provide funds to fi- 
nance capital improvements to the 
physical plant and for the purchase of 
major capital equipment by the Mansfield 
Facility from which the timber is sold. 

"The Division of Youth Services shall 
report all income derived from the sale of 
timber to the Chief Fiscal Officer of the 
State and the Arkansas Legislative Coun- 
cil. Any contracts initiated for the harvest- 
ing and sale of timber shall be submitted 
to the Review Subcommittee of the Arkan- 
sas Legislative Council for prior review. 
All expenditures of funds derived from the 



sale of timber will be expended in accor- 
dance with relevant state purchasing 
laws. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 219, § 15, provided: 
"DEVELOPMENTAL DISABILITIES — 
TIMBER SALES PROCEEDS — CAPI- 
TAL IMPROVEMENTS AND EQUIP- 
MENT. The Division of Developmental 
Disabilities Services is authorized to use 
the administrative operating accounts for 
capital improvements to physical plants 
and for the purchase of capital equipment. 
The funds shall be held by the Depart- 
ment of Human Services, Division of De- 
velopmental Disabilities Services from 
the proceeds of the sale of timber that may 
be harvested from land owned by the 
Division of Developmental Disabilities 
Services. All funds deposited and all ex- 
penses shall be tracked separately. The 
harvesting of timber is specifically autho- 
rized to provide funds to finance capital 
improvements to the physical plants and 
for the purchase of major capital equip- 
ment. 

"The Division of Developmental Dis- 
abilities Services shall report all income 
derived from timber management to the 
Chief Fiscal Officer of the State and the 
Arkansas Legislative Council. Any con- 



20-64-302 PUBLIC HEALTH AND WELFARE 324 

tracts initiated for the harvesting of tim- will be expended in accordance with rel- 

ber shall be submitted to the Review Sub- evant state purchasing laws, 

committee of the Arkansas Legislative "The provisions of this section shall be 

Council for prior review. All expenditures in effect only from July 1, 2012 through 

of funds derived from the sale of timber June 30, 2013." 

SUBTITLE 4. FOOD, DRUGS, AND COSMETICS 

CHAPTER 64 
ALCOHOL AND DRUG ABUSE 

Subchapter 3 — Arkansas Drug Abuse Control Act 

20-64-302. Definitions. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- 
cation of State Trademark Counterfeiting 
Statutes. 63 A.L.R.6th 303. 

20-64-306. Prohibited acts. 

RESEARCH REFERENCES 

ALR. Validity, Construction, and Appli- 
cation of State Trademark Counterfeiting 
Statutes. 63 A.L.R.6th 303. 

SUBTITLE 5. SOCIAL SERVICES 

CHAPTER 76 
PUBLIC ASSISTANCE GENERALLY 

A.C.R.C. Notes. Acts 2012, No. 282, begin the study. The contract shall be 

§ 26, provided: "TANF STUDY. The De- awarded no later than June 30, 2011. 

partment of Workforce Services shall im- "Questions to be addressed in the study 

mediately proceed with issuing a Request shall include, but not be limited to: 

for Proposals (RFP), or other appropriate "1) What program model is best for 

methodology, requesting qualified vendors Arkansas? 

to submit proposals for the completion of a "2) Which children will be eligible? 

study to determine the best and most "3) Should payments be limited to rela- 

appropriate way to address the financial tives with legal guardianship, unrelated 

needs of grandparents raising grandchil- foster parents, or unrelated individuals 

dren through the Temporary Assistance with close ties to the child or family? 

for Needy Families (TANF) Block Grant "4) What impact will these payments 

Program. Immediately upon receiving re- have on other public benefits currently 

sponses from qualified vendors, the De- received on behalf of these children? 

partment shall immediately take steps to "5) What agency will determine eligi- 

enter into a contract arrangement with bility? 

the vendor that submits the lowest and/or "6) What about child support obliga- 

most responsible response to the RFP and tions? 



325 



MEDICAL ASSISTANCE 



20-64-306 



"7) Who will regulate residence compli- 
ance? 

"8) Will the program require criminal 
background checks? If yes, who will pay 
for it? 

"9) What is the actual financial impact 
for the TANF program? 

"10) What other funding sources exists 
for the proposed program? 

"The Department shall consider the 
findings of this study in conjunction with 
the Department's TANF Program Inde- 
pendent Evaluation Study and the evalu- 
ation of the Arkansas Career Pathways 
Initiative. In addition, the Department 



shall duly consider the findings from the 
grandparents raising grandchildren study 
as they prepare their annual TANF bud- 
get. 

"If the Department of Workforce Ser- 
vices fails to comply with all of the provi- 
sions of this Section by December 31, 
2011, the Department shall immediately 
begin providing cash assistance payments 
to grandparents who are the legal guard- 
ians of their* grandchildren, and whose 
incomes are below 100% of the Federal 
Poverty Level (FPL). These payments 
shall be paid at the rate of $100 per month 
per grandparent household." 



Subchapter 3 — Social Security Disability Determination 



A.C.R.C. Notes. Acts 2012, No. 175, 
§ 4, provided: "EXTRA HELP RESTRIC- 
TION. No extra help employee of Disabil- 
ity Determination for Social Security Ad- 
ministration shall be employed for a 



period of time to exceed eighteen hundred 
(1800) hours in any single fiscal year. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 77 
MEDICAL ASSISTANCE 



A.C.R.C. Notes. Acts 2012, No. 250, 
§ 13, provided: "STATE PLAN. The State 
Plan must include the provision of EPSDT 
services as those services are defined in 
§1396d(r). See §§ 1396a(a)(10)(A), 
1396d(a)(4)(B); see also 1396a(a)(43). Sec- 
tion 1396d(r) lists in detail the screening 
services, vision services, dental services, 
and hearing services that the State Plan 
must expressly include, but with regard to 
treatment services, it states that EPSDT 
means "[s]uch other necessary health 
care, diagnostic services, treatment, and 
other measures described in subsection (a) 
of this section to correct or ameliorate 
defects and physical and mental illnesses 
and conditions discovered by the screen- 
ing services, whether or not such services 
are covered under the State plan." 42 
U.S.C. § 1396d(r)(5) (emphasis added). 
Reading §1396a, § 1396d(a), and 
§ 1396d(r) together, we believe that the 
State Plan need not specifically list every 
treatment service conceivably available 
under the EPSDT mandate. 






"The State Plan, however, must pay 
part or all of the cost of treatments to 
ameliorate conditions discovered by the 
screening process when those treatments 
meet the definitions set forth in § 1396a. 
See §1396d(r)(5); see also §§1396a(a)(10), 
1396a (a)(43), and 1396d(a)(4)(B). The Ar- 
kansas State Plan states that the 'State 
will provide other health care described in 
[42 U.S.C. 1396d(a)] that is found to be 
medically necessary to correct or amelio- 
rate defects and physical and mental ill- 
nesses and conditions discovered by the 
screening services, even when such health 
care is not otherwise covered under the 
State Plan.' See State Plan Under Title 
XIX of the Social Security Act Medical 
Assistance Program, State Of Arkansas at 
§4.b. This provision Meets the EPSDT 
mandate of the Medicaid Act. 

"We affirm the district court's decision 
to the extent that it holds that a Medicaid- 
Eligible individual has a federal right to 
early intervention day treatment when a 
physician recommends such treatment. 



PUBLIC HEALTH AND WELFARE 



326 



Section 1396d(r)(5) states that EPSDT 
includes any treatments or measures out- 
lined in §1396d(a). There are twenty- 
seven sub-parts to §1396d(a), and we find 
that sub-part (a)(13), in particular, when 
read with the other sections of the Medic- 
aid Act listed above, mandates that early 
intervention day treatment be provided 
when it is prescribed by a physician. See 
42 U.S.C. §1396d(a)(13) (defining medical 
assistance reimbursable by Medicaid as 
'other diagnostic, screening, preventive, 
and rehabilitative services, including any 
medical or remedial services recom- 
mended by a physician... for the maximum 
reduction of physical and mental disabil- 
ity and restoration of an individual to the 
best possible functional level'). Therefore, 
after CHMS clinic staff perform a diagnos- 
tic evaluation of an eligible child, if the 
CHMS physician prescribes early inter- 
vention day treatment as a service that 
would lead to the maximum reduction of 
medical and physical disabilities and res- 
toration of the child to his or her best 
possible functional level, the Arkansas 
State Plan must reimburse the treatment. 
Because CHMS clinics are the only pro- 
viders of early intervention day treat- 
ment, Arkansas must reimburse those 
clinics." 

Acts 2012, No. 250, § 14, provided: 
"MEDICAL SERVICES — STATE MED- 
ICAID PROGRAM/PERSONAL CARE 
PROGRAM. 

"(a) It is the legislative intent that the 
Department of Human Services in its ad- 
ministration of the Arkansas Medicaid 
Program set forth Medicaid provider par- 
ticipation requirements for 'personal care 
providers' that will insure sufficient avail- 
able providers to meet the required needs 
of all eligible recipients, to include insur- 
ing available in home services twenty-four 
(24) hours a day and seven (7) days a week 
for personal care. 

"(b) For the purposes of this section, 
'private care agencies' are defined as those 
providers licensed by the Department of 
Labor, certified as ElderChoices Providers 
and who furnish in home staffing services 
for respite, chore services, and home- 
maker services, and are covered by liabil- 
ity insurance of not less than one million 
dollars ($1,000,000) covering their em- 
ployees and independent contractors 
while they are engaged in providing ser- 



vices, such as personal care, respite, chore 
services, and homemaker services. 

"(c) The purpose of this section is to 
allow the private care agencies defined 
herein to be eligible to provide Medicaid 
reimbursed personal care services seven 
(7) days a week, and does not supercede 
Department of Human Services rules es- 
tablishing monthly benefit limits and 
prior authorization requirements. 

"(d) The availability of providers shall 
not require the Department of Human 
Services to reimburse for twenty-four (24) 
hours per day of personal care services. 

"(e) The Arkansas Department of Hu- 
man Services, Medical Services Division 
shall take such action as required by the 
Centers for Medicare and Medicaid Ser- 
vices to amend the Arkansas Medicaid 
manual to include, private care agencies, 
as qualified entities to provide Medicaid 
reimbursed personal care services. 

"(f) The private care agencies shall 
comply with rules and regulations pro- 
mulgated by the Arkansas Department of 
Health which shall establish a separate 
licensure category for the private care 
agencies for the provision of Medicaid 
reimbursable personal care services seven 
(7) days a week. 

"(g) The Arkansas Department of 
Health shall supervise the conduct of the 
personal care agencies defined herein. 

"(h) The purpose of this section is to 
insure the care provided by the private 
care agencies, is consistent with the rules 
and regulations of the Arkansas Depart- 
ment of Health. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 250, § 15, provided: "RE- 
VIEW OF RULES IMPACTING STATE 
MEDICAID COSTS. 

"(a) In light of the rapidly rising poten- 
tial costs to the State attributable to the 
Medicaid program and the importance of 
Medicaid expenditures to the health and 
welfare of the citizens of this State, the 
General Assembly finds it desirable to 
exercise more thorough review of future 
proposed changes to rules that might im- 
pact those costs or expenditures. 

"(b) As used in this section, 'rule im- 
pacting state Medicaid costs' means a pro- 
posed rule, as defined by § 25-15-202(8), 
or a proposed amendment to an existing 
rule, as defined by § 25-15-202(8), that 



327 



MEDICAL ASSISTANCE 



would, if adopted, adjust Medicaid reim- 
bursement rates, Medicaid eligibility cri- 
teria, or Medicaid benefits, including 
without limitation a proposed rule or a 
proposed amendment to an existing rule 
seeking to accomplish the following: 

"(1) Reduce the number of individuals 
covered by Arkansas Medicaid; 

"(2) Limit the types of services covered 
by Arkansas Medicaid; 

"(3) Reduce the utilization of services 
covered by Arkansas Medicaid; 

"(4) Reduce provider reimbursement; 

"(5) Increase consumer cost-sharing; 

"(6) Reduce the cost of administering 
Arkansas Medicaid; 

"(7) Increase Arkansas Medicaid rev- 
enues; 

"(8) Reduce fraud and abuse in the Ar- 
kansas Medicaid program; 

"(9) Change any of the methodologies 
used for reimbursement of providers; 

"(10) Seek a new waiver or modification 
of an existing waiver of any provision 
under Medicaid, Title XIX, of the Social 
Security Act, including a waiver that 
would allow a demonstration project; 

"(11) Participate or seek to participate 
in Social Security Act Section 1115(a)(1) 
waiver authority that would allow opera- 
tion of a demonstration project or pro- 
gram; 

"(12) Participate or seek to participate 
in a Social Security Act Section 1115(a)(2) 
request for the Secretary of the Depart- 
ment of Health and Human Services to 
provide federal financial participation for 
costs associated with a demonstration 
project or program; 

"(13) Implement managed care provi- 
sions under Section 1932 of Medicaid, 
Title XIX of the Social Security Act; or 

"(14) Participate or seek to participate 
in the Centers for Medicare and Medicaid 
Services Innovation projects or programs. 

"(c)(1) In addition to filing require- 
ments under the Arkansas Administrative 
Procedure Act, § 25-15-201 et seq., and 
§ 10-3-309, the Department of Human 
Services shall, at least thirty (30) days 
before the expiration of the period for 
public comment, file a proposed rule im- 
pacting state Medicaid costs or a proposed 
amendment to an existing rule impacting 
state Medicaid costs with the Senate In- 
terim Committee on Public Health, Wel- 



fare, and Labor and the House Interim 
Committee on Public Health, Welfare, and 
Labor, or, when the General Assembly is 
in session, with the Senate Committee on 
Public Health, Welfare, and Labor and the 
House Committee on Public Health, Wel- 
fare and Labor. 

"(2) Any review of the proposed rule or 
proposed amendment to an existing rule 
by the Senate and House Interim Commit- 
tees on Public Health, Welfare and Labor 
or the Senate and House Committees on 
Public Health, Welfare, and Labor shall 
occur within forty-five (45) days of the 
date the proposed rule or proposed 
amendment to an existing rule is filed 
with the committees. 

"(d)(1) If adopting an emergency rule 
impacting state Medicaid costs, in addi- 
tion to the filing requirements under the 
Arkansas Administrative Procedure Act, 
§ 25-15-201 et seq. and § 10-3-309, the 
Department of Human Services shall no- 
tify the Speaker of the House of Represen- 
tatives, the President Pro Tempore of the 
Senate, the chair of the Senate Committee 
on Public Health, Welfare, and Labor, and 
the chair of the House Committee on Pub- 
lic Health, Welfare and Labor of the emer- 
gency rule and provide each of them a 
copy of the rule within five (5) business 
days of adopting the rule. 

"(2) Any review of the emergency rule 
by the Senate and House Interim Commit- 
tees on Public Health, Welfare and Labor 
or the Senate and House Committees on 
Public Health, Welfare, and Labor shall 
occur within forty-five (45) days of the 
date the emergency rule is provided to the 
chairs. 

"(e)(1) The Joint Budget Committee 
may review a rule impacting state Medic- 
aid costs during a regular, fiscal, or special 
session of the General Assembly. 

"(2) Actions taken by the Joint Budget 
Committee when reviewing a rule impact- 
ing state Medicaid costs shall have the 
same effect as actions taken by the Legis- 
lative Council under § 10-3-309. 

"(3) If the Joint Budget Committee re- 
views a rule impacting state Medicaid 
costs, it shall file a report of its actions 
with the Legislative Council as soon as 
practicable. 

"(f) This section expires on June 30, 
2013." 



20-77-101 PUBLIC HEALTH AND WELFARE 

Subchapter 1 — General Provisions 



328 



20-77-101. Cost-sharing charges for medically indigent. 

CASE NOTES 



Public Policy and Trusts. 

Trustee intended to modify the trust in 
order to qualify a beneficiary for public 
benefits; because impoverishing the ben- 
eficiary in order to qualify her would make 
the trust provisions void, the modified 
provisions would have been void on 
grounds of public policy, and the trial 
court's denial of the modification motion 
was that the purpose for modifying the 
trust would be defeated. In re Ruby G. 
Owen Trust, 2012 Ark. App. 381, — 
S.W.3d — (2012). 



Trial court considered case law from 
other jurisdictions that permitted the 
modification the trustee requested in this 
case, in order to qualify a beneficiary for 
public benefits, but the trial court did not 
find that the modification was permissible 
under public policy and Arkansas law; the 
court was not left with a firm conviction 
that a mistake was committed. In re Ruby 
G. Owen Trust, 2012 Ark. App. 381, — 
S.W.3d — (2012). 



Subchapter 4 — Prescription Drugs 



Acts 2012, No. 250, § 11, provided: 
"MEDICAL SERVICES — GENERAL 
MEDICAID RATE METHODOLOGY 
PROVISIONS. 

"(a) Rates established by the Division 
of Medical Services for the services or 
programs covered by this Act shall be 
calculated by the methodologies approved 
by the Centers for Medicare and Medicaid 
Services (CMS). The Division of Medical 
Services shall have the authority to re- 
duce or increase rates based on the ap- 
proved methodology. Further, the Division 
of Medical Services shall have the author- 
ity to increase or decrease rates for good 
cause including, but not limited to: 

"(1) Identification of provider(s) who 
can render needed services of equal qual- 
ity at rates less than traditionally charged 
and who meet the applicable federal and 
state laws, rules and regulations pertain- 
ing to the provision of a particular service; 

"(2) Identification that a provider or 
group of providers has consistently 
charged rates to the Arkansas Medicaid 
Program greater than to other purchasers 
of medical services of similar size; 



"(3) The Division determines that there 
has been significant changes in the tech- 
nology or process by which services are 
provided by a provider or group of provid- 
ers which has affected the costs of provid- 
ing services, or; 

"(4) A severe economic downturn in the 
Arkansas economy which has affected the 
overall state budget of the Division of 
Medical Services. 

"The Division of Medical Services shall 
make available to requesting providers, 
the CMS's inflationary forecasts (CMS 
Market Basket Index). Rates established 
with cost of living increases based on the 
CMS Market Basket Index or other indi- 
ces will be adjusted annually except when 
the state budget does not provide suffi- 
cient appropriation and funding to affect 
the change or portion thereof. 

"(b) Any rate methodology changes pro- 
posed by the Division of Medical Services 
both of a general and specific nature, shall 
be subject to prior review by the Legisla- 
tive Council or Joint Budget Committee. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



329 



CHILD CARE 



20-78-104 



20-77-403. Fees paid to participating pharmacists. 



A.C.R.C. Notes. Acts 2012, No. 250, 
§ 10, provided: "MEDICAL SERVICES — 
PHARMACEUTICAL DISPENSING FEE 
SURVEY. No more than two years prior to 
making any changes to the current phar- 
maceutical dispensing fee, the State shall 
conduct an independent survey utilizing 
generally accepted accounting principles, 
to determine the cost of dispensing a pre- 
scription by pharmacists in Arkansas. 
Only factors relative to the cost of dispens- 
ing shall be surveyed. These factors shall 
not include actual acquisition costs or 
average profit or any combination of ac- 



tual acquisition costs or average profit. 
The survey results shall be the basis for 
establishing the dispensing fee paid to 
participating pharmacies in the Medicaid 
prescription drug program in accordance 
with Federal requirements. The dispens- 
ing fee shall be no lower than the cost of 
dispensing as determined by the survey. 
Nothing in this section shall be construed 
to prohibit the State from increasing the 
dispensing fee at any time. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 78 
CHILD CARE 

Subchapter 1 — General Provisions 

20-78-104. Child Health and Family Life Institute. 



A.C.R.C. Notes. Acts 2012, No. 250, 
§ 9, provided: "MEDICAL SERVICES — 
CHILD AND FAMILY LIFE INSTITUTE. 
The Child Health and Family Life Insti- 
tute shall be administered under the di- 
rection of Arkansas Children's Hospital. 
Arkansas Children's Hospital shall enter 
into a cooperative agreement and/or con- 
tract with the University of Arkansas for 
Medical Sciences — Department of Pedi- 
atrics for services required in delivering 
the programs of the Child Health and 
Family Life Institute. Utilizing a multi- 
disciplinary collaboration of professionals, 
the Child Health and Family Life Insti- 
tute shall provide a statewide effort to 
explore, develop and evaluate new and 
better ways to address medically, socially 
and economically interrelated health and 
developmental needs of children with spe- 
cial health care needs and their families. 
The Child Health and Family Life Insti- 
tute's priorities shall include, but are not 
limited to, wellness and prevention, 
screen and diagnosis, treatment and in- 
tervention, training and education and 
research and evaluation. 

"Arkansas Children's Hospital and the 
University of Arkansas for Medical Sci- 
ences — Department of Pediatrics shall 
make annual reports to the Arkansas Leg- 



islative Council on all matters of funding, 
existing programs and services offered 
through the Child Health and Family Life 
Institute. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 257, § 39, provided: 
"CHILD AND FAMILY LIFE INSTI- 
TUTE. The Child Health and Family Life 
Institute shall be administered under the 
direction of Arkansas Children's Hospital. 
Arkansas Children's Hospital shall enter 
into a cooperative agreement and/or con- 
tract with the University of Arkansas for 
Medical Sciences-Department of Pediat- 
rics for services required to deliver the 
programs of the Child Health and Family 
Life Institute (CHFLI). Utilizing a multi- 
disciplinary collaboration of professionals, 
CHFLI shall provide a statewide effort to 
explore, develop and evaluate new and 
better ways to address medically, socially 
and economically interrelated health and 
developmental needs of children with spe- 
cial health care needs and their families. 
CHFLI priorities shall include, but are not 
limited to, wellness and prevention, 
screen and diagnosis, treatment and in- 
tervention, training and education and 
research and evaluation. Arkansas Chil- 



20-81-102 



PUBLIC OFFICERS AND EMPLOYEES 



330 



dren's Hospital and the University of Ar- 
kansas for Medical Sciences-Department 
of Pediatrics shall make annual reports to 
the Arkansas Legislative Council on all 
matters of funding, existing programs and 



services offered through CHFLI. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 81 
VETERANS' AFFAIRS 



20-81-102. Department of Veterans' Affairs 
ers and duties. 



Creation — Pow- 



A.C.R.C. Notes. Acts 2012, No. 99, 
§ 12, provided: "LIABILITY INSUR- 
ANCE APPROPRIATION RESTRIC- 
TION. In no event shall the Department 
of Veterans' Affairs expend or transfer any 
appropriation or funds for the purchase of 



malpractice liability insurance for the 
benefit of a non-governmental entity. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



TITLE 21 
PUBLIC OFFICERS AND EMPLOYEES 

CHAPTER 5 
COMPENSATION AND BENEFITS 



Subchapter 1 — General Provisions 



A.C.R.C. Notes. Acts 2012, No. 135, 
§ 5, provided: "SALARIES. In order that 
exceptionally well-qualified personnel 
may be recruited and retained, the Office 
of the Governor may exceed the maximum 
salary levels by no more than twenty 



percent (20%) for no more than one-third 
{Vz) of the positions authorized in the 
operation appropriation act after receiv- 
ing approval from the Arkansas Legisla- 
tive Council or Joint Budget Committee." 



Subchapter 2 — Uniform Classification and Compensation Act 



21-5-221. Compensation differentials. 



A.C.R.C. Notes. Acts 2012, No. 257, 
§ 43, provided: "ON-CALL COMPENSA- 
TION. On-call duty or standby duty dif- 
ferential may be authorized for a Classi- 
fied or Non-Classified patient care 
employee whose job requires him or her to 
provide services when there is no regu- 
larly scheduled staff coverage. An em- 
ployee shall not exceed 128 hours during 



any seven-day period, at rates of pay not 
to exceed those provided in the Uniform 
Classification and Compensation Act, or 
its successor, or this act for the appropri- 
ate compensation. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



331 



LIABILITY OF STATE AND LOCAL GOVERNMENTS 21-9-301 



CHAPTER 8 
ETHICS AND CONFLICTS OF INTEREST 



A.C.R.C. Notes. Acts 2012, No. 264, 
§ 7, provided: "ADVERTISING. No adver- 
tising targeting the prevention or reduc- 
tion of tobacco use shall include the name, 
voice, or likeness of any elected official or 



their immediate family. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 9 
LIABILITY OF STATE AND LOCAL GOVERNMENTS 

Subchapter 3 — Liability of Political Subdivisions 



21-9-301. Tort liability — Immunity declared. 

CASE NOTES 



Analysis 

Constitutionality. 
In General. 
Applicability. 
Intentional Torts. 

Constitutionality. 

In an action filed against a school dis- 
trict and a bus driver after the rape of a 
student, the provision of limited immu- 
nity under this section did not violate Ark. 
Const, art. 2, § 13, and an appellate court 
was unable to overturn caselaw to the 
extent that it shielded a school district 
from accountability under the Arkansas 
Public Education Act, §§ 6-15-1001 to 
1007, because judicial precedent from the 
Arkansas Supreme Court had to be fol- 
lowed. Young v. Blytheville Sch. Dist., 
2013 Ark. App. 50, — S.W.3d — , 2013 Ark. 
App. LEXIS 68 (Jan. 30, 2013). 

In General. 

Arkansas Legislature did not intend to 
partially repeal this section when it en- 
acted the Arkansas Public Education Act, 
§§ 6-15-1001 to 1007. Young v. Blytheville 
Sch. Dist., 2013 Ark. App. 50, — S.W.3d 



— , 2013 
2013). 



Ark. App. LEXIS 68 (Jan. 30, 



Applicability. 

Trial court erred in denying a city's 
motion for summary judgment in an ac- 
tion by property owners for damage to 
their property because at no point did the 
complaint mention breach of a contract; 
because the city put forth proof that it did 
not have insurance coverage for the claim 
alleged, it was entitled to immunity under 
subsection (a) of this section as to the tort 
cause of action. City of Malvern v. Jen- 
kins, 2013 Ark. 24, — S.W.3d — , 2013 Ark. 
LEXIS 31 (Jan. 31, 2013). 

Intentional Torts. 

In an action against a school district 
and a bus driver arising from a student's 
rape, although the student was a victim of 
intentional torts when she was pulled into 
a bathroom and raped, there was no facts 
indicating that the school district or the 
bus driver committed those acts or any 
other intentional torts. Therefore, immu- 
nity was provided under this section. 
Young v. Blytheville Sch. Dist., 2013 Ark. 
App. 50, — S.W.3d — , 2013 Ark. App. 
LEXIS 68 (Jan. 30, 2013). 



22-2-108 PUBLIC PROPERTY 332 

TITLE 22 
PUBLIC PROPERTY 

CHAPTER 2 
ARKANSAS BUILDING AUTHORITY 

22-2-108. Powers and duties generally. 

A.C.R.C. Notes. Act 2012, No. 102, state agencies, boards, commissions, of- 

§ 17, provided: "RESTRICTIONS. Arkan- fices and departments, 
sas Building Authority shall not demolish "The provisions of this section shall be 

the 501 Building, formerly known as the i n effect only from July 1, 2012 through 

Aegon building, but shall retain the build- June 30 2013." 
ing as suitable office space to be used by 

22-2-114. Leasing responsibilities. 

A.C.R.C. Notes. Acts 2012, No. 126, dures as set out in Arkansas Code 22-2- 

§ 3, provided: "LEASING FROM AR- 114. 

KANSAS BUILDING AUTHORITY. The "The provisions of this section shall be 

Board of Hearing Instrument Dispensers i n effect only from July 1, 2012 through 

shall be exempt from Arkansas Building June 30, 2013." 
Authority leasing jurisdiction and proce- 

CHAPTER 3 
PUBLIC BUILDINGS AND OTHER FACILITIES 

Subchapter 3 — Capitol Zoning District 

22-3-306. Authority of Capitol Zoning District Commission over 
property within Capitol Zoning District — Permits. 

CASE NOTES 

Fences. historic residences in all of Arkansas, and 

There was substantial evidence to sup- surrounding properties traditionally had 

port the Capitol Zoning District Commis- fences at or under 40 inches in height, 

sion's decision denying a property owner's Capitol Zoning Dist. Comm'n v. Cowan, 

application to install a 48-inch-high fence. 2012 Ark. App. 619, — S.W.3d — , 2012 

The owner's property was one of the most Ark. App. LEXIS 732 (Oct. 31, 2012). 

Subchapter 10 — War Memorial Stadium 

A.C.R.C. Notes. Acts 2012, No. 174, estate without the prior review and ap- 

§ 5, provided: "APPROPRIATION RE- proval of the Arkansas Legislative Council 

STRICTIONS — LAND ACQUISITION, or Joint Budget Committee. 

In no event shall any funds appropriated "Determining the maximum number of 

to the War Memorial Stadium Commis- employees and the maximum amount of 

sion be used for the acquisition of real appropriation and general revenue fund- 



333 



PUBLIC UTILITIES AND REGULATED INDUSTRIES 22-8-206 



ing for a state agency each fiscal year is 
the function of the General Assembly. This 
is usually accomplished by delineating 
such maximums as the appropriation in 
the appropriation act(s) for a state agency 
and the general revenue allocations au- 
thorized for each fund and fund account 
by amendment to the Revenue Stabiliza- 
tion law. Therefore, it is both necessary 
and appropriate that the General Assem- 
bly maintain oversight by requiring prior 
approval of the Legislative Council or 
Joint Budget Committee as provided by 



this section. The requirement of approval 
by the Legislative Council or Joint Budget 
Committee is not a severable part of this 
section. If the requirement of approval by 
the Legislative Council or Joint Budget 
Committee is ruled unconstitutional by a 
court of competent jurisdiction, then the 
authority of the Commission to acquire 
real estate is void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 8 
MOTOR VEHICLES 

Subchapter 2 — Automobile and Pickup Truck Acquisition 



22-8-206. Purchase of automobiles. 



A.C.R.C. Notes. Acts 2012, No. 284, 
§ 16, provided: "MOTOR VEHICLE AC- 
QUISITION REVOLVING FUND — MO- 
TOR VEHICLE PURCHASES/RENOVA- 
TION. At least fifty percent (50%) of the 
general revenues and/or general improve- 
ment funds deposited into the Motor Ve- 



hicle Acquisition Revolving Fund shall be 
used for motor vehicle purchases and/or 
motor vehicle renovation costs for the De- 
partment of Arkansas State Police. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



TITLE 23 

PUBLIC UTILITIES AND REGULATED 
INDUSTRIES 

SUBTITLE 4. MISCELLANEOUS REGULATED INDUSTRIES 



CHAPTER. 

115. ARKANSAS SCHOLARSHIP LOTTERY ACT. 



23-2-420 PUBLIC UTILITIES AND REGULATED INDUSTRIES 334 

SUBTITLE 1. PUBLIC UTILITIES AND CARRIERS 

CHAPTER 2 
REGULATORY COMMISSIONS 

Subchapter 4 — Procedure Before Commissions 

23-2-420. Orders, findings, rules, certificates, etc., under Acts 
1935, No. 324, to be in writing — Copies as evidence. 

CASE NOTES 

Public Service Commission kept. Consequently, courts may take judi- 
Arkansas Public Service Commission's cial notice of orders rendered by the Corn- 
orders are matters of public record under mission. Falcon Cable Media LP v. Ark. 
this section. Courts take judicial notice of PSC, 2012 Ark. 463, — S.W.3d — , 2012 
public records that are required to be Ark. LEXIS 501 (Dec. 13, 2012). 

23-2-421. Findings and orders of Arkansas Public Service Com- 
mission. 

CASE NOTES 

Findings of Fact. customers were overbilled for electricity 
Arkansas Public Service Commission usage, and whether the customers re- 
complied with subsection (a) of this sec- quested that the permanent service be 
tion when it gave a considered response activated was not directly relevant to 
that informed the parties of the basis for whether they were overbilled for that ser- 
the order and indicated the reasoning by vice . p reS sler v. Ark. PSC, 2011 Ark. App. 

which the Commission reached its deci- 5^2 SW3d (2011) 

sion; the issue in the case was whether 

23-2-423. Arkansas Public Service Commission orders — Judi- 
cial review — Procedure. 

CASE NOTES 

Analysis Constitutional Rights. 

Customers were afforded due process 
In General. because they had the opportunity to sub- 

Constitutional Rights. poena witnesses but failed to do so; the 

Scope of Review. Arkansas Public Service Commission's 



In General. 



Rules of Practice and Procedure provide 
that parties before the Commission may 



Fact that customers were proceeding 

pro se before the Arkansas Public Service r ^ uest s ^ P o e nas from the Commission 

Commission did not warrant them special *? secur f *? testimony of witnesses but 

treatment because pro se parties were those rules do not specify a time m which 

held to the same standard as a licensed subpoenas are required to be served, 

attorney. Pressler v. Ark. PSC, 2011 Ark. Pressler v. Ark. PSC, 2011 Ark. App. 512, 

App. 512, — S.W.3d — (2011). — S.W.3d — (2011). 



335 



TELEPHONE AND TELEGRAPH COMPANIES 



23-17-404 



Scope of Review. 

Because a university did not file a peti- 
tion for rehearing from an administrative 
law judge's order, it could not argue on 
appeal that the order erroneously held 
that facilities agreements the university 
entered into with an energy company 
were void and unenforceable in their en- 
tirety. Entergy Ark., Inc. v. Ark. PSC, 2011 
Ark. App. 453, — S.W.3d — (2011). 

Arkansas Public Service Commission 
(PSC) did not err in dismissing customer's 
complaint alleging that an energy com- 
pany overcharged them for electric service 



because there was testimony that the me- 
ter on the customers' house was working 
properly and that the appliances installed 
in the home could have used the amount 
of electricity billed under the weather 
conditions during the time period in ques- 
tion; the administrative law judge specifi- 
cally credited the testimony a member of 
the PSC staff that there was no evidence 
that the company overbilled the custom- 
ers or that it violated any of the PCS's 
rules. Pressler v. Ark. PSC, 2011 Ark. App. 
512, — S.W.3d — (2011). 



CHAPTER 3 

REGULATION OF UTILITIES AND CARRIERS 
GENERALLY 

Subchapter 4 — Energy Conservation Endorsement Act of 1977 

23-3-405. Authority of Arkansas Public Service Commission — 
Rates and charges. 

CASE NOTES 



Authority. 

Arkansas Public Service Commission 
had authority to approve a general policy 
to award incentives to utilities for their 
achievement in delivering essential en- 
ergy-conservation services, because under 
subsection (b) of this section, the "cost" 



provision was not intended as a limitation 
on the Commission's ability to pursue 
other means of promoting energy effi- 
ciency Ark. Elec. Energy Consumers, Inc. 
v. Ark. PSC, 2012 Ark. App. 264, — S.W.3d 
— (2012). 



CHAPTER 17 
TELEPHONE AND TELEGRAPH COMPANIES 



Subchapter 4 — Telecommunications Regulatory Reform 
23-17-404. Preservation and promotion of universal service, 



A.C.R.C. Notes. Acts 2012, No. 191, 
§ 14, provided: "ARKANSAS HIGH 
COST FUND. To ensure that telecommu- 
nications rates are reasonable and afford- 
able, the Arkansas Public Service Com- 
mission should take all reasonable steps 
necessary to reduce the Arkansas High 



Cost Fund (AHCF), and avoid mandating 
any additional charges or expenses for 
telecommunications services that could 
increase AHCF assessments which would 
result in higher AHCF surcharges to cus- 
tomers." 






23-79-125 PUBLIC UTILITIES AND REGULATED INDUSTRIES 

SUBTITLE 3. INSURANCE 

CHAPTER 79 
INSURANCE POLICIES GENERALLY 

Subchapter 1 — General Provisions 

23-79-125. Payment by insurer — Discharge. 

CASE NOTES 



336 



Discharge. 

Pursuant to this section, where none of 
the interpleaded bank defendants had 
given written notice to an insurer that 
they intended to claim any interest in 
policy proceeds after insureds' home and 
personal property were destroyed by fire, 



the insurer could have availed itself of the 
statutory protection rather than filing an 
interpleader action that did nothing but 
delay payment of the proceeds of the 
policy. Farm Bureau Mut. Ins. Co. of Ark., 
Inc. v. Guyer, 2011 Ark. App. 710, — 
S.W.3d — (2011). 



Subchapter 2 — Suits Against Insurers 



23-79-202. Limitation of actions. 



CASE NOTES 



Analysis 



Construction. 
Applicability. 

Construction. 

This section's reference to "period pre- 
scribed by law for bringing actions on 
promises in writing" does not incorporate 
the judicial rule of law that generally 
permits insurers to shorten the period for 
bringing actions under insurance policies 
to a reasonable time. Graham v. Hartford 
Life & Accident Ins. Co., 677 F.3d 801 (8th 
Cir. 2012). 



23-79-208. Damages and attorney's fees on loss claims. 

CASE NOTES 



Applicability. 

Insured's breach of contract suit, which 
was brought outside an accidental death 
and dismemberment policy's three-year 
time limit, was timely; this section pre- 
cluded the insurer from contractually 
shortening the limitations period to less 
than the five-year period for breach of 
contract actions under § 16-56- 111(a). 
Graham v. Hartford Life & Accident Ins. 
Co., 677 F.3d 801 (8th Cir. 2012). 



Insurer's Liability. 

Pursuant to subdivision (a)(1) of this 
section, an insurer's filing of an interp- 
leader complaint was unreasonable where 
none of the named defendants had any 
claim to the proceeds of the insurance 
policy that the insureds had filed a claim 
for, based on a fire that destroyed their 



home and personal property; a second 
mortgage was immaterial where the 
terms of the policy between the insureds 
and the insurer did not name the second 
mortgagee as a loss payee. Farm Bureau 
Mut. Ins. Co. of Ark., Inc. v. Guyer, 2011 
Ark. App. 710, — S.W.3d — (2011). 

Pursuant to subdivision (a)(1) of this 



337 



PROPERTY INSURANCE 



23-88-101 



section, an insurer's filing of an interp- 
leader complaint was unreasonable where 
none of the named defendants had any 
claim to the proceeds of the insurance 
policy that the insureds had filed a claim 
for, based on a fire that destroyed their 



home and personal property; judgment 
creditors' liens did not apply to the insur- 
ance proceeds. Farm Bureau Mut. Ins. Co. 
of Ark., Inc. v. Guyer, 2011 Ark. App. 710, 
— S.W.3d — (2011). 



23-79-210. Direct cause of action against liability insurer when 
insured not subject to tort suit. 



CASE NOTES 



Analysis 



Damages. 
Direct Actions. 
Rights of Parties. 

Damages. 

In a direct action that was brought 
against a liability insurer after a surgeon 
operated on the wrong side of the patient's 
brain, the circuit court did not err in 
reducing the jury's verdict from $20 mil- 
lion to $11 million. Subdivision (a)(3) of 
this section limited liability to the extent 
of coverage in the policy. Proassurance 
Indem. Co. v. Metheny, 2012 Ark. 461, — 
S.W.3d — , 2012 Ark. LEXIS 499 (Dec. 13, 
2012). 

Direct Actions. 

Ark. R. Civ. P. 15(c) did not apply and 
the estate administrator's claims were 
barred by the statute of limitations, be- 
cause the administrator's error in failing 
to name the insurer in the original com- 
plaint was purely due to a misunderstand- 



ing of this section, the direct-action stat- 
ute, and not because she did not have the 
identity of the insurance company. Glass 
v. Saline County Med. Ctr, 2012 Ark. App. 
525, — S.W.3d — (2012). 

Rights of Parties. 

Where plaintiff insurer sought to de- 
posit its policy limits into the court, and 
defendants, the known claimants of an 
accident caused by the insured's driver's 
negligence, asserted counterclaims under 
this section, alleging the limits included 
additional sums, under the UIM endorse- 
ment's "Coverage" section, "underinsured 
motor vehicle" included a vehicle with 
liability coverage provided in the same 
policy as the UIM endorsement, and the 
UIM coverage was explicitly additional to 
any liability coverage, including the insur- 
er's, thus, the claimants could aggregate 
liability and UIM coverage. Argonaut 
Great Cent. INS. Co. v. Casey, 701 F.3d 
829, 2012 U.S. App. LEXIS 23280 (8th Cir. 
Nov. 13, 2012). 



CHAPTER 88 
PROPERTY INSURANCE 



Subchapter 1 — General Provisions 
23-88-101. Valued policy law. 

RESEARCH REFERENCES 

ALR. Applicability of Valued-Policy 
Statutes to Flood, Wind, and Hurricane 
Damage. 62 A.L.R.6th 227. 



23-89-202 PUBLIC UTILITIES AND REGULATED INDUSTRIES 

CHAPTER 89 
CASUALTY INSURANCE 



338 



Subchapter 2 — Automobile Liability Insurance Generally 



23-89-202. Required first party coverage. 



CASE NOTES 



Benefits. 

Trial court did not err in granting an 
insurer's motion for summary judgment 
in an insured's action to recover benefits 
under a no-fault medical provision be- 
cause the exclusion contained in the in- 
sured's policy was valid and applied in all 
scenarios where workers' compensation 



benefits either had been paid in whole or 
in part or could be paid in whole or in part; 
because the insured was covered by work- 
ers' compensation, she was excluded from 
receiving medical-payments coverage un- 
der § 23-89-205. Bohot v. State Farm 
Mut. Auto. Ins. Co., 2012 Ark. 22, — 
S.W.3d — (2012). 



23-89-203. Rejection of coverage. 



CASE NOTES 



In General. 

Trial court did not err in granting an 
insurer's motion for summary judgment 
in an insured's action to recover benefits 
under a no-fault medical provision be- 
cause the exclusion contained in the in- 
sured's policy was valid and applied in all 
scenarios where workers' compensation 

23-89-205. Exclusion of benefits. 



benefits either had been paid in whole or 
in part or could be paid in whole or in part; 
because the insured was covered by work- 
ers' compensation, she was excluded from 
receiving medical-payments coverage un- 
der § 23-89-205. Bohot v. State Farm 
Mut. Auto. Ins. Co., 2012 Ark. 22, — 
S.W.3d — (2012). 



CASE NOTES 



Workers' Compensation. 

Trial court did not err in granting an 
insurer's motion for summary judgment 
in an insured's action to recover benefits 
under a no-fault medical provision be- 
cause the exclusion contained in the in- 
sured's policy was valid and applied in all 
scenarios where workers' compensation 



benefits either had been paid in whole or 
in part or could be paid in whole or in part; 
because the insured was covered by work- 
ers' compensation, she was excluded from 
receiving medical-payments coverage un- 
der this section. Bohot v. State Farm Mut. 
Auto. Ins. Co., 2012 Ark. 22, — S.W.3d — 
(2012). 



23-89-207. Insurer's right of reimbursement. 



CASE NOTES 



Right to Subrogation. 

Trial court erred in dismissing the in- 
surer's declaratory judgment count, hav- 
ing erred in determining the insurer had a 
valid lien under this section, that arose at 



the time the insurer made medical pay- 
ment to the insured. The subrogation lien 
could not arise or attach until the insured 
received the settlement proceeds and 
there was a judicial determination that 



339 TITLE INSURANCE 23-103-405 

she had been made whole. Riley v. State 
Farm Mut. Auto. Ins. Co., 2011 Ark. 256, 
— S.W.3d — (2011). 

23-89-208. Payments. 

CASE NOTES 

Workers' Compensation. benefits either had been paid in whole or 
Trial court did not err in granting an in part or could be paid in whole or in part; 
insurer's motion for summary judgment because the insured was covered by work- 
in an insured's action to recover benefits ers' compensation, she was excluded from 
under a no-fault medical provision be- receiving medical-payments coverage un- 
cause the exclusion contained in the in- der § 23-89-205. Bohot v. State Farm 
sured's policy was valid and applied in all Mut. Auto. Ins. Co., 2012 Ark. 22, — 
scenarios where workers' compensation S.W.3d — (2012). 

CHAPTER 99 
HEALTH CARE PROVIDERS 

Subchapter 4 — Arkansas Health Care Consumer Act 

23-99-418. Coverage for autism spectrum disorders required — 
Definitions. [Effective October 1, 2011.] 

A.C.R.C. Notes. Acts 2012, No. 219, sas Code § 23-99-418. The rules and regu- 

§ 17, provided: "AUTISM TREATMENT lations shall include a requirement for a 

AND COORDINATION. The Department licensure application fee equal to that 

of Human Services — Division of Devel- charged to applicants to be licensed as a 

opmental Disabilities Services shall pro- psychologist as described in Arkansas 

mulgate rules and regulations regarding C ode § 17-97-309. Proceeds from this fee 

the licensure and oversight of Applied are dec lared as cash funds." 
Behavior Analysts as described in Arkan- 

CHAPTER 103 
TITLE INSURANCE 

Subchapter 4 — Arkansas Title Insurance Act 

23-103-405. Title insurers — Limitation of authority — Powers. 

CASE NOTES 

Negligence. priation and the alleged breach of that 

Bank stated a claim of negligence be- duty which caused the bank damage, 

cause of the title company's duty allegedly However, the bank's general claim of neg- 

created by this section to underwrite an ligence set forth in was dismissed as it 

Insured Closing Protection Letter which was simply a recitation of the legal ele- 

provided coverage for theft and misappro- ments of negligence. U.S. Bank N.A. ND v. 



23-110-105 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



340 



Elender Escrow, Inc., — F. Supp. 2d — , 
2011 U.S. Dist. LEXIS 134690 (E.D. Ark. 
Nov. 21, 2011). 

SUBTITLE 4. MISCELLANEOUS REGULATED 
INDUSTRIES 

CHAPTER 110 
ARKANSAS HORSE RACING LAW 

Subchapter 1 — General Provisions 



23-110-105. Racing passes. 

A.C.R.C. Notes. Acts 2012, No. 30, § 6, 
provided: "RACING PASS RESTRIC- 
TIONS. The Director of the Department of 
Finance and Administration shall set a 
maximum number of racing passes to be 
printed and issued annually and it shall 



not be less than the number printed in 
1990. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 111 
ARKANSAS GREYHOUND RACING LAW 

Subchapter 1 — General Provisions 



23-111-105. Racing passes. 

A.C.R.C. Notes. Acts 2012, No. 30, § 6, 
provided: "RACING PASS RESTRIC- 
TIONS. The Director of the Department of 
Finance and Administration shall set a 
maximum number of racing passes to be 
printed and issued annually and it shall 



not be less than the number printed in 
1990. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



Subchapter 5 — Conduct of Meets 

23-111-505. Additional racing days for benefit of indigent pa- 
tients, etc. 



A.C.R.C. Notes. Acts 2012, No. 281, 
§ 56, provided: "CREDIT TO THE INDI- 
GENT PATIENTS FUND. 

"(b) All revenue derived from the pari- 
mutuel tax at the fifteen (15) additional 
days of racing authorized by subsection (a) 
of Ark. Code 23-111-505 after monies have 
been remitted by the franchise holder to 
Mid-South Community College as may be 
provided by law, shall be deposited with 
the Treasurer of State as special revenue 



for credit to the Indigent Patients Fund, to 
be used to defray the cost of hospitaliza- 
tion and other medical services of indigent 
Arkansas patients in health care facilities 
by Mississippi County, Poinsett County, 
Cross County, St. Francis County and Lee 
County for which the county has not re- 
ceived total reimbursement. Each county 
shall certify to the Chief Fiscal Officer of 
the State the amount of the unreimbursed 
medical expenses under such procedures 



341 



ARKANSAS MOTOR VEHICLE COMMISSION ACT 23-112-403 



and such detail as required by the Depart- funds available or the amount certified of 

ment of Finance and Administration. The unreimbursed medical expenses, which- 

amount available to each county shall be ever is less." 
no more than one-fifth (Vs) of the total 

CHAPTER 112 
ARKANSAS MOTOR VEHICLE COMMISSION ACT 

Subchapter 2 — Arkansas Motor Vehicle Commission 

23-112-205. Disposition of funds. 



A.C.R.C. Notes. Acts 2012, No. 169, 
§ 3, provided: "CONSUMER PROTEC- 
TION. Protecting the consumer is a criti- 
cal purpose of the Arkansas Motor Vehicle 
Commission. Therefore, of the total 
amount appropriated under Section 2 of 
this Act for the operating expenses of the 
Arkansas Motor Vehicle Commission, sev- 
enteen thousand five hundred dollars 
($17,500) each fiscal year shall be allo- 
cated to consumer protection efforts. The 



Arkansas Motor Vehicle Commission will 
submit quarterly a written report to Ar- 
kansas Legislative Council on their Con- 
sumer Protection efforts. 

"The Arkansas Motor Vehicle Commis- 
sion will continue to develop additional 
programs and procedures that will expand 
consumer protection efforts. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



23-112-206. Fund transfer — Motor vehicle education and train- 
ing. 



A.C.R.C. Notes. Acts 2012, No. 169, 
§ 4, provided: "FUND TRANSFER — 
MOTOR VEHICLE EDUCATION AND 
TRAINING. For the fiscal year ending 
June 30, 2008, and for each fiscal year 
thereafter, the Director of the Arkansas 
Motor Vehicle Commission may, from time 
to time as needed, certify to the Chief 
Fiscal Officer of the State the amount of 
funds necessary to transfer on his or her 
books and those of the State Treasurer 
and the Auditor of State, from the Motor 



Vehicle Commission Fund to the Depart- 
ment of Workforce Education Fund Ac- 
count, to provide funds for expenses re- 
lated to motor vehicle education and 
training. Fund transfer will be completed 
following quarterly review of program ex- 
penditures, including a review of the 
availability of program funding. In no 
event shall the amount of funds trans- 
ferred under the provisions of this section 
exceed one hundred fifty thousand dollars 
($150,000) in any one fiscal year." 



Subchapter 4 — Unlawful Practices 

23-112-403. Manufacturers, distributors, second-stage manufac- 
turers, importers, or converters. 

CASE NOTES 






Termination. 

Because the Arkansas Motor Vehicle 
Commission failed in its obligation to 
make sufficient findings of fact relevant to 



the contested issue of what constituted 
the current model year, the supreme court 
could not determine whether the Commis- 
sion had resolved that issue in conformity 



23-114-601 PUBLIC UTILITIES AND REGULATED INDUSTRIES 342 

with the law. Voltage Vehicles v. Ark. Mo- 
tor Vehicle Comm'n, 2012 Ark. 386, — 
S.W.3d — (2012). 

CHAPTER 114 
CHARITABLE BINGO AND RAFFLES 

Subchapter 6 — Excise Tax 

23-114-601. Tax levied. 

Publisher's Notes. This note is being 
set out to correct an error in the 2009 
supplement. 

CHAPTER 115 
ARKANSAS SCHOLARSHIP LOTTERY ACT 

subchapter. 
11. Arkansas Lottery Commission Legislative Oversight Committee. 

Subchapter 11 — Arkansas Lottery Commission Legislattve Oversight 

Committee 

section. mission Legislative Over- 

23-115-1102. Filing of information with sight Committee. 

Arkansas Lottery Com- 

23-115-1102. Filing of information with Arkansas Lottery Com- 
mission Legislative Oversight Committee. 

(a) It is the intent of the General Assembly that the Arkansas Lottery 
Commission Legislative Oversight Committee perform the monitoring 
and oversight functions of the Legislative Council for the Arkansas 
Lottery Commission. 

(b) All contracts, rules, reports, or other information required by law 
to be filed by the commission with the Legislative Council: 

(1) Shall not be filed with the Legislative Council; and 

(2) Shall be filed with the Arkansas Lottery Commission Legislative 
Oversight Committee. 

(c)(1) The Arkansas Lottery Commission Legislative Oversight Com- 
mittee shall perform all duties or functions of the Legislative Council 
required by law concerning the contracts, rules, reports, or other 
information filed with the Arkansas Lottery Commission Legislative 
Oversight Committee under subsection (b) of this section. 

(2) The Bureau of Legislative Research shall provide staff for the 
Arkansas Lottery Commission Legislative Oversight Committee. 



343 SCHOOL EMPLOYEES 24-7-103 

History. Acts 2009, No. 605, § 1; 2009, Amendments. The 2010 amendment 
No. 606, § 1; 2010, No. 265, § 36; 2010, by identical acts Nos. 265 and 294 added 
No. 294, § 36. (c)(2). 

Publisher's Notes. This section is be- 
ing set out to reflect a correction in the 
2011 supplement. 

TITLE 24 
RETIREMENT AND PENSIONS 

CHAPTER 2 

PUBLIC EMPLOYEE RETIREMENT PLANS 
GENERALLY 

Subchapter 7 — Arkansas Public Employee Retirement Plans 

24-2-703. Tax exemptions. 

CASE NOTES 

Analysis empt from ad valorem taxation, under 

Ark. Const. Art. 16, § 5(b), despite this 
Shopping Center Owned by Arkansas section and § 24-7-204, purportedly ex- 
Teacher Retirement. empting the property, because (1) the stat- 
— System Not Exempt from Ad Valorem utes had to yield to the Arkansas Consti- 
Taxation. tution, under which public property was 

01 _ ^ ~ j i_ a i only exempt if the property was used 

Shopping Center Owned by Arkansas J , \. vt , /m ., 

Teacher Retirement. exclusively for a public purpose, and (2) it 

was undisputed that the property was 

— System Not Exempt from Ad leased to private businesses. Ark. Teacher 

Valorem Taxation. Ret. Sys. v. Short, 2011 Ark. 263, 381 

Shopping center owned by the Arkansas S.W.3d 834 (2011). 
Teacher Retirement System was not ex- 

CHAPTER 7 

RETIREMENT OF EMPLOYEES OF SCHOOLS AND 
EDUCATIONAL INSTITUTIONS 

Subchapter 1 — General Provisions 

24-7-103. Payment of employer contribution rate. 

A.C.R.C. Notes. Acts 2012, No. 269, lished by the Teacher Retirement Board of 

§ 20, provided: "RETIREMENT MATCH- Directors. The appropriation contained 

ING. Beginning with the 1996-97 school herein for Teacher Retirement Matching 

year, Local School Districts shall pay the each fiscal year shall be used to provide 

teacher retirement employer contribution the employer matching for employees of 

rate for any eligible employee in accor- the Cooperative Education Services Ar- 

dance with rules and regulations estab- eas, Vocational Centers, Arkansas Easter 



24-7-204 



RETIREMENT AND PENSIONS 



344 



Seals and the school operated by the De- in effect only from July 1, 2012 through 
partment of Correction. June 30, 2013." 

"The provisions of this section shall be 



Subchapter 2 — Arkansas Teacher Retirement System 

Provisions 



General 



24-7-204. Tax status of system assets. 

CASE NOTES 



Analysis 

Shopping Center Owned by Arkansas 

Teacher Retirement. 
— System Not Exempt from Ad Valorem 

Taxation. 

Shopping Center Owned by Arkansas 
Teacher Retirement. 

— System Not Exempt from Ad 
Valorem Taxation. 

Shopping center owned by the Arkansas 
Teacher Retirement System was not ex- 



empt from ad valorem taxation, under 
Ark. Const. Art. 16, § 5(b), despite § 24- 
2-703 and this section, purportedly ex- 
empting the property, because (1) the stat- 
utes had to yield to the Arkansas 
Constitution, under which public property 
was only exempt if the property was used 
exclusively for a public purpose, and (2) it 
was undisputed that the property was 
leased to private businesses. Ark. Teacher 
Ret. Sys. v. Short, 2011 Ark. 263, 381 
S.W.3d 834 (2011). 



Subchapter 4 — Arkansas Teacher Retirement System — Funds and 

Management of Assets 

24-7-403. Restrictions on use of assets. 

CASE NOTES 



Analysis 

Shopping Center Owned by Arkansas 

Teacher Retirement. 
— System Not Exempt from Taxation. 

Shopping Center Owned by Arkansas 
Teacher Retirement. 

— System Not Exempt from Taxation. 

Shopping center owned by the Arkansas 
Teacher Retirement System (ATRS) was 
not exempt from ad valorem taxation, 



under Ark. Const. Art. 16, § 5(b), because, 
(1) to be exempt, public property had to be 
used exclusively for a public purpose, (2) it 
was undisputed that the property was 
leased to private businesses, and (3) the 
fact that income from the property was 
used to fulfill the function of the ATRS, 
mandated in subsection (a) of this section, 
to provide benefits, did not show the prop- 
erty was used exclusively for a public 
purpose. Ark. Teacher Ret. Sys. v. Short, 
2011 Ark. 263, 381 S.W.3d 834 (2011). 



345 LOCAL POLICE & FIRE PENSION & RELIEF FUNDS 24-11-203 

CHAPTER 11 

LOCAL POLICE AND FIRE PENSION AND RELIEF 

FUNDS 

Subchapter 1 — General Provisions 

24-11-102. Increase in benefits. 

CASE NOTES 

Increase in Benefits. protection, Ark. Const. Art. 2, § 3, be- 

This section authorized a board of trust- cause there was a rational basis for impos- 

ees of a policemen's pension to increase ing them, a lack of cost of living increases, 

monthly benefits to current retirees by a Bakalekos v. Furlow, 2011 Ark. 505, 385 

fixed dollar amount, and the increases for S.W.3d 810 (2011). 
the current retirees did not violate equal 

Subchapter 2 — Disclosure of Financial Condition — Arkansas Fire 
and Police Pension Review Board 

24-11-203. Arkansas Fire and Police Pension Review Board. 

A.C.R.C. Notes. Acts 2012, No. 281, books and those of the State Treasurer 

§ 62, provided: "FUNDING TRANSFER amounts not to exceed the total amount 

— FIRE AND POLICE PENSION. On or recommended by the Board or the amount 

before June 15 of each fiscal year, the appropriated herein for the ensuing fiscal 

Arkansas Fire and Police Pension Review year> whichever is the lesser amount, from 

Board shall certify to the Chief Fiscal the Revenue Holding Fund Account to the 

Officer of the State the amount of funding ^^ Fire and p ohce p ension Guar . 
it recommends for disbursement in the ^ , ~ ,. .., ,. ,, 

ensuing fiscal year to under-funded mu- ante * Fund for distribution to the recom- 

nicipal fire and police relief and pension mended under-funded plans, 
plans as defined in Arkansas Code 24-11- The provisions of this section shall be 

209. The Chief Fiscal Officer of the State in effect onl y from Jul y *> 2012 through 

shall then immediately transfer on his June 30, 2013." 

TITLE 25 
STATE GOVERNMENT 

CHAPTER. 

19. FREEDOM OF INFORMATION ACT OF 1967. 
42. HEALTH INFORMATION TECHNOLOGY. 



25-3-106 STATE GOVERNMENT 

CHAPTER 3 
DEPARTMENT OF ARKANSAS HERITAGE 



346 



25-3-106. Publication Development and Resale Revolving Fund. 



A.C.R.C. Notes. Acts 2012, No. 233, 
§ 33, provided: "PUBLICATION DEVEL- 
OPMENT AND RESALE. The Depart- 
ment of Arkansas Heritage is hereby au- 
thorized to make fund transfers from the 
Natural & Cultural Resources Historic 
Preservation Fund or other funds estab- 
lished from federal or non-federal grants 
to the Publication Development and Re- 
sale Revolving Fund to use to develop and 



purchase additional publications for re- 
sale after seeking prior review by the 
Arkansas Legislative Council. In no case 
shall the fund transfers exceed twenty- 
five thousand dollars ($25,000) in any 
fiscal year. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 4 
DEPARTMENT OF INFORMATION SYSTEMS 

25-4-105. Department of Information Systems — General pow- 
ers and duties. 



A.C.R.C. Notes. Acts 2012, No. 281, 
§ 76, provided: "INNOVATION AND 
PROJECT DEVELOPMENT FUND 
TRANSFERS. The Department of Infor- 
mation Systems is a cost recovery agency 
subject to the requirements of the United 
States Office of Management and Budget 
Circular A-87 Cost Principles for State, 
Local and Indian Tribal Government CA- 
ST) and Cost Principles for Developing 
Cost Allocation Plans and Indirect Cost 
Rates for Agreements with the Federal 
Government Implementation Guide for 
the Office of Management and Budget 
Circular A-87 (ASMBC-10). To comply 
with these federal rules, it is necessary to 
establish an Innovation and Project De- 
velopment appropriation and general rev- 



enue fund account within the Department 
of Finance and Administration Disbursing 
Officer for the Department of Information 
Systems. This fund shall be used for state 
enterprise innovation projects that would 
enhance the technology operations of the 
State that cannot be cost allocated to 
federal programs. The Department of In- 
formation Systems will maintain docu- 
mentation for projects billed for these pur- 
poses. Fund transfers may be made from 
the General Revenue Fund Account, upon 
the approval of the Chief Fiscal Officer of 
the State and prior review of the Arkansas 
Legislative Council or Joint Budget Com- 
mittee, to reimburse the Department of 
Information Systems for the amounts 
billed." 



25-4-106. Reporting requirements. 



A.C.R.C. Notes. Acts 2012, No. 165 
§ 8, provided: "REPORTING REQUIRE- 
MENTS. 

"(a)(1) The Director of the Department 
of Information Systems will report peri- 
odically to the Joint Committee on Ad- 
vanced Communications and Information 
Technology and the Executive Chief Infor- 
mation Officer regarding the status of the 
Department of Information Systems' in- 



formation technology responsibilities in 
state government. 

"(2) The director will forward to the 
joint committee any statutory changes 
that the department may recommend suf- 
ficiently in advance of the convening of the 
session of the General Assembly. 

"(3) The director may report any factors 
that are outside the scope of the depart- 
ment but are deemed to inhibit or to 



347 



DEPARTMENT OF HEALTH 



25-9-103 



promote the department's responsibili- 
ties. 

"(b)(1) By October 31, January 31, April 
30, and July 31 of each fiscal year, the 
Director of the Department Information 
Systems shall compile and submit a re- 
port to: 

"(A) The Arkansas Legislative Council, 
if submitted between regular sessions of 
the General Assembly; 

"(B) The Joint Budget Committee, if 
submitted during a session of the General 
Assembly; and 

"(C) The Joint Committee on Advanced 
Communications and Information Tech- 
nology. 

"(2) The report shall: 

"(A) Detail all requests from state 
agencies, boards, and commissions for ad- 
vice regarding information technology 
planning, implementation, installation, 
rates or fees, utilization of products, ser- 
vices, and integrations or upgrades to be 
added to all existing technology plans; and 

"(B) Provide a full report of all corre- 
sponding recommendations made by the 
Department of Information Systems to 



the requesting state agencies, boards, and 
commissions. 

"(3) The report shall include: 

"(A) The name of the state agency, 
board, or commission requesting the ad- 
vice; 

"(B) The name and scope of the project 
for which advice is being sought; 

"(C) The type of advice sought, for ex- 
ample: technical, product or service utili- 
zation, planning, implementation, instal- 
lation, integration, or upgrades; 

"(D) A detailed explanation of all rec- 
ommendations provided by the Depart- 
ment of Information Systems; 

"(E) How the recommendation fits into 
the information technology plan of the 
agency, board, or commission; 

"(F) How the recommendation fits into 
the state's information technology plan 
and shared technical architecture; and 

"(G) Other information as may be use- 
ful for policy making decisions by the 
Legislative Council or Joint Committee on 
Advanced Communications and Informa- 
tion Technology." 



CHAPTER 8 
DEPARTMENT OF FINANCE AND ADMINISTRATION 

25-8-102. Authority of director generally. 



A.C.R.C. Notes. Acts 2012, No. 161 
§ 12, provided: "AUTHORITY TO EM- 
PLOY CERTIFIED LAW ENFORCE- 
MENT OFFICERS. The Director of the 
Department of Finance and Administra- 
tion is authorized to employ not more than 
one (1) certified law enforcement officer as 
certified under § 12-9-101 et seq. The 
certified law enforcement officer employed 



under this section shall be responsible for 
maintaining order and providing for the 
security, protection, and safety of Depart- 
ment buildings, grounds, property, em- 
ployees and customers. The certified law 
enforcement officer shall have the powers, 
duties, privileges, and immunities of a 
certified law enforcement officer." 



CHAPTER 9 
DEPARTMENT OF HEALTH 



25-9-103. Patient care providers — Wages — Required withhold- 
ing — Fringe benefits. 



A.C.R.C. Notes. Acts 2012, No. 280, 
§ 32, provided: "PATIENT CARE PRO- 
VIDERS — COMPENSATION, RE- 
QUIRED WITHHOLDING, FRINGE 
BENEFITS. The Arkansas Department of 



Health, at its discretion, is authorized to 
contract with intermittent Patient Care 
Providers in order to provide services in 
the home. The Department is authorized 
to pay compensation which may include 



25-9-105 



STATE GOVERNMENT 



348 



state withholding, federal withholding, 
required matching, and other fringe ben- 
efits to contract Patient Care Providers. 
However, compensation shall not include 
state retirement or health benefits. As 
funding allows, the Department shall 
make efforts to provide mileage reim- 
bursement to a level comparable to rates 
authorized for its regular salaried employ- 
ees. Beginning July 1, 2011, the Depart- 
ment will review the cost of increasing 



mileage reimbursement by 10% to inter- 
mittent Patient Care Providers paid at a 
level less than regular salaried Depart- 
ment employees. All compensation to in- 
termittent Patient Care Providers shall be 
made from the appropriation for Profes- 
sional Fees and Services. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



25-9-105. Home health on-call and visit pay. 



A.C.R.C. Notes. Acts 2012, No. 280, 
§ 20, provided: "HOME HEALTH ON- 
CALL AND VISIT PAY. The Arkansas 
Department of Health is hereby autho- 
rized to compensate the following person- 
nel responsible for providing in-home 
health care as necessary to maintain con- 
tinuity of care outside routine working 
hours on weekdays and on weekends or 
holidays: 

"Area Nursing Director 

"Nursing Program Coordinator 

"Registered Nurse 

"Speech Pathologist 

"Physical Therapist 

"Licensed Social Worker 

"Occupational Therapist 

"Nurse Manager 

"Licensed Practical Nurse 

"Nursing Aide 

"Licensed Certified Social Worker 
"Visit pay shall not exceed $75 per visit. 
Employees requested to be on-call and/or 
on standby for visiting on nights, week- 



ends, and/or holidays will be eligible to 
receive on-call pay not to exceed $60 per 
day. Provided however, no compensation 
shall be paid to any employee required to 
be on-call and/or standby who fails to 
respond after the second notification that 
their services are needed. In the event of 
equipment or paging device malfunction, 
such penalty shall not apply. All compen- 
sated services shall be provided as di- 
rected by the Arkansas Department of 
Health. All visit and on-call pay shall be 
paid from funds as appropriated in this 
Act. Such compensation for visit and on- 
call pay, when added to the employee's 
regular salary and benefits, shall not be 
construed as exceeding the maximum an- 
nual salary as described in the General 
Accounting and Budgetary Procedures 
Act. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 10 
DEPARTMENT OF HUMAN SERVICES 

Subchapter 1 — General Provisions 



A.C.R.C. Notes. Acts 2012, No. 157, 
§ 16, provided: "TRANSFER AUTHOR- 
ITY. The Director of the Department of 
Human Services shall have transfer au- 
thority provided by the following: 

"(a) DEPARTMENT OF HUMAN SER- 
VICES RENOVATION FUND. The Direc- 
tor of the Department of Human Services 
is authorized to request fund transfers 
according to the provisions established by 
Arkansas Code Ann. 19-5-1020, Depart- 



ment of Human Services Renovation 
Fund, as amended herein; and 

"(b) MATCH TRANSFER. The Director 
of the Department of Human Services, 
with the approval of the Chief Fiscal Offi- 
cer of the State, is authorized to effect 
inter-agency and inter-divisional fund 
transfers for the purpose of providing the 
State's matching share for payments 
made to that Division or Office or its 
service providers for services eligible for 



349 



DEPARTMENT OF HUMAN SERVICES 



federal reimbursement under programs 
administered by the Department of Hu- 
man Services. The Department of Human 
Services shall report to the Legislative 
Council or Joint Budget Committee on a 
quarterly basis all fund transfers made in 
accordance with the authority granted by 
this section; and 

"(c) YOUTH SERVICES — HOUSING 
AND SEPARATION APPROPRIATION 
PROVISIONS. The Division of Youth Ser- 
vices (DYS) is authorized to fulfill its 
responsibility to house offenders between 
the ages of 18 and 21 and to separate 
juvenile offenders by age and seriousness 
of offense by either employing additional 
state employees and providing the corre- 
sponding operating expenses or entering 
into professional services contracts. If the 
Division of Youth Services determines 
that the Division needs to employ state 
employees to fulfill the housing and sepa- 
ration requirements, they may transfer 
up to the total amount appropriated for 
the DYS — Residential Services Program 
appropriation to the appropriate DYS ap- 
propriation and line items, upon approval 
of the Chief Fiscal Officer of the State, and 
prior review by the Legislative Council; 
and 

"(d) REALLOCATION OF RE- 
SOURCES: (1) The Department of Hu- 
man Services (DHS) provides hundreds of 
different services to over 1 million Arkan- 
sans. The specific mix of service needs and 
the funding and staffing required to pro- 
vide them can vary significantly based on 
many factors, including natural disasters, 
changing federal mandates and funding 
sources, demographic shifts, fluctuating 
court-ordered services, social trends, and 
job market variations such as nursing 
shortages. The impact of these factors 
through the course of any fiscal year make 
it very difficult for the Department to 
accurately predict the exact needs for 
funding, appropriation and positions in 
each of its over 100 different appropria- 
tions. To ensure that it can respond 
quickly to changing client needs and make 
the most effective use of the resources 
allocated to it, the Department of Human 
Services shall be authorized to utilize the 
reallocation of resource authority to make 
the proper adjustments to the budgets 
within the Department. Therefore, upon 
determination by the Director of the De- 
partment of Human Services that a real- 



location of resources within the depart- 
ment is necessary for the efficient and 
effective operation of the department, the 
director, with approval of the Governor, 
shall have the authority to request, from 
the Chief Fiscal Officer of the State, a 
transfer of positions, appropriations, line 
item appropriations, and funds within or 
between existing and newly created divi- 
sions, offices, sections, or units of the 
department. Provided, however, that no 
transfer of funds or appropriation that 
provides direct support or matching sup- 
port for the Arkansas Medicaid Program 
shall be made to any other fund account or 
appropriation that does not directly sup- 
port the Arkansas Medicaid Program. 
Further, no positions, funds, or appropria- 
tion authorized during the budget process 
for the Division of Children and Family 
Services compliance with initiatives es- 
tablished under the Angela R. consent 
decree shall be transferred to any other 
division. Nothing in this provision is in- 
tended to prevent the one-time transfers 
of savings in any other program to the 
Arkansas Medicaid Program, with the ex- 
ception of the provisions previously cited 
for the Division of Children and Family 
Services — Angela R. consent decree. The 
Division of Developmental Disabilities — 
Grants to Community Providers line item 
of the Developmental Disabilities Services 
— Grants-in-Aid appropriation may not 
be decreased. The appropriation, funding, 
and positions provided for the six Human 
Development Centers shall remain at a 
level sufficient to ensure quality care for 
the Centers' residents. The exemptions 
provided in this subsection whereby cer- 
tain DHS Programs and Divisions are 
protected from appropriation, fund, or po- 
sition transfers are applicable only to the 
reallocation or transfer authority granted 
herein, and not by any reductions which 
are applicable to all state programs. 

"The Director of the Department of Hu- 
man Services shall submit any requests 
for transfers to and must receive approval 
of the requests for transfers from the 
Chief Fiscal Officer of the State, the Gov- 
ernor, and the Arkansas Legislative Coun- 
cil prior to the effective date of the trans- 
fers. Provided, however, that the 
Department of Human Services shall be 
limited to submitting no more than two 
reallocation of resources transfer requests 
during any fiscal year. In each Depart- 



STATE GOVERNMENT 



350 



mental request no single division will re- 
quest reallocation for more than one pur- 
pose as listed in this section. Transfer 
authority for unforeseen purposes shall 
further be limited to no more than 5% of 
the total appropriation, funding, and po- 
sitions authorized for the Department. 
Reallocation of resources transfers may 
include multiple items but shall be limited 
to the following purposes: 

"i). Medicaid Program 

"ii). Facilities and institutions costs, in- 
cluding operational expenses and con- 
struction/renovation/equipping expenses 

"hi). Departmental grants and contracts 

"iv). Court ordered settlements and pay- 
ments 

"v). Payment of administrative ex- 
penses, including but not limited to, over- 
time and other costs of personnel for criti- 
cal services or functions necessary to 
carry out the mission of the agency 

"vi). Restructuring efforts as deemed 
necessary to comply with new and/or un- 
anticipated federal or state mandates 

"vii). Redirecting internal resources, 
both direct and/or indirect, to meet client 
needs and services 

"Determining the maximum number of 
employees and the maximum amount of 
appropriation and general revenue fund- 
ing for a state agency each fiscal year is 
the prerogative of the General Assembly. 
This is usually accomplished by delineat- 
ing such maximums in the appropriation 
act(s) for a state agency and the general 
revenue allocations authorized for each 
fund and fund account by amendment to 
the Revenue Stabilization law. Further, 
the General Assembly has determined 
that the Department of Human Services 
may operate more efficiently if some flex- 
ibility is provided to the Department of 
Human Services authorizing broad pow- 
ers under the Reallocation of Resources 
provisions herein. Therefore, it is both 
necessary and appropriate that the Gen- 
eral Assembly maintain oversight by re- 
quiring prior approval of the Legislative 
Council or Joint Budget Committee ' as 
provided by this section. The requirement 
of approval by the Legislative Council or 
Joint Budget Committee is not a severable 
part of this section. If the requirement of 
approval by the Legislative Council or 
Joint Budget Committee is ruled uncon- 
stitutional by a court of competent juris- 
diction, this entire section is void. 



"(2) If it is determined that the re- 
quested reallocation of resources transfers 
should be made, the Chief Fiscal Officer of 
the State shall then initiate the necessary 
transfer documents to reflect the transfers 
upon the fiscal records of the Treasurer of 
State, the Auditor of State, the Chief Fis- 
cal Officer of the State, and the Depart- 
ment of Human Services. In addition, the 
Chief Fiscal Officer of the State, together 
with the Co-Chairpersons of the Legisla- 
tive Council or Joint Budget Committee, 
may approve, on an emergency basis, re- 
quests for utilization of this Section with- 
out prior approval of the Arkansas Legis- 
lative Council, with any such actions 
reported at the next meeting of the Arkan- 
sas Legislative Council. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 157, § 17, provided: 
"NURSING/DIRECT CARE EDUCA- 
TION STIPEND PROGRAM. Special pro- 
vision for a Nursing/Direct Care Educa- 
tion Stipend Program for the Department 
of Human Services is hereby authorized to 
pay from State and Federal Funds appro- 
priated in each division Act. This program 
is for eligible nursing students who are 
attending accredited nursing institutions 
to become Registered or Licensed Practi- 
cal Nurses, as well as Certified Nursing 
Assistants, Residential Care Assistants, 
Residential Care Technicians, Residential 
Care Supervisors and Behavioral Health 
Aides. 

"The stipend is $5,000 per person per 
year. Any student who is awarded and 
accepts a stipend is under employment 
commitment to the respective DHS Divi- 
sion and is required to work for that 
division, in a full-time employee status 
effective immediately upon graduation. 
The student employment commitment is 
equal to the number of years the stipend 
was awarded and accepted. In the event of 
Employee/Student default of the employ- 
ment commitment, the Employee/Student 
will be considered in breach of contract 
and repayment of the stipend will be re- 
quired as specified in the Stipend Con- 
tract. 

"Each division participating in the Edu- 
cation Stipend Program shall determine 
on an annual basis, the number of student 
stipends available. 



351 



DEPARTMENT OF HUMAN SERVICES 



"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 157, § 18, provided: 
"NURSING/DIRECT CARE RECRUIT- 
MENT/RETENTION BONUSES. Special 
provision to provide Nursing/Direct Care 
Recruitment and Retention Bonuses for 
the Department of Human Services is 
hereby authorized to pay from State and 
Federal funds appropriated for each re- 
spective division. Nursing/direct care ser- 
vice recruitment/retention bonuses are in 
addition to the maximum annual amounts 
provided in the Regular Salaries Section 
of the respective Division Act for Regis- 
tered Nurse, Licensed Practical Nurse, 
Certified Nursing Assistant, Residential 
Care Assistant, Residential Care Techni- 
cian, Residential Care Supervisor and Be- 
havioral Health Aide. New hire nurses 
must be licensed by the Arkansas State 
Board of Nursing. The total recruitment/ 
retention bonus payment commitment for 
eligible nurses shall not exceed $4,000 per 
Registered Nurse and $2,000 per Licensed 
Practical Nurse and $1,000 per Certified 
Nursing Assistant, Residential Care As- 
sistant, Residential Care Technician, 
Residential Care Supervisor and Behav- 
ioral health Aide. 

"The lump sum bonus payments and 
employment commitment to the State will 
be made in partial payments as follows: 

"Registered Nurse Classifications 

"$1,000 after completing 6 months pro- 
bationary employment 

"$1,500 after completing 1st year em- 
ployment 

"$1,500 after completing 2nd year em- 
ployment 

"Licensed Practical Nurse Classifica- 
tions 

"$ 500 after completing 6 months pro- 
bationary employment 

"$ 500 after completing 1st year employ- 
ment 

"$1,000 after completing 2nd year em- 
ployment 

"Certified Nursing Assistant/Residen- 
tial Care Assistant/Residential Care Tech- 



nician/Residential Care Supervisor/Be- 
havioral Health Aide Classifications 

"$ 500 after completing 6 month proba- 
tionary employment 

"$ 500 after completing 1st year employ- 
ment 

"Any qualified person hired and offered 
bonus payment described herein will for- 
feit the balance of the payments if he/she 
voluntarily resigns or is terminated for 
cause from employment from the Depart- 
ment of Human Services prior to complet- 
ing the required employment commitment 
time periods outlined above. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 

Acts 2012, No. 280, § 26, provided: 
"NURSING/DIRECT CARE EDUCA- 
TION STIPEND PROGRAM. Special pro- 
vision for a Nursing/Direct Care Educa- 
tion Stipend Program for the Arkansas 
Department of Health (ADH) is hereby 
authorized to pay from funds appropri- 
ated in this Act. This program is for eli- 
gible nursing students who are attending 
accredited nursing institutions to become 
Registered or Licensed Practical Nurses. 

"The stipend is five thousand dollars 
($5,000) per person per year. Any student 
who is awarded and accepts a stipend is 
under an employment commitment to the 
ADH and is required to work in a full-time 
employee status effective immediately 
upon graduation. The student employ- 
ment commitment is equal to the number 
of years the stipend was awarded and 
accepted. In the event of Employee/Stu- 
dent default of the employment commit- 
ment, the Employee/Student will be con- 
sidered in breach of contract and 
repayment of the stipend will be required 
as specified in the Stipend Contract. 

"The ADH shall determine, on an an- 
nual basis, the number of student sti- 
pends available due to the availability of 
funds and the need for direct care ser- 
vices. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



25-10-134 



STATE GOVERNMENT 



352 



25-10-134. Community-based residential programs — Regula- 
tions. 



A.C.R.C. Notes. Acts 2012, No. 218, 
§ 9, provided: "YOUTH SERVICES — 
COMMUNITY-BASED RESIDENTIAL 
PROGRAMS — RESTRICTIONS. The 
Department of Human Services shall not 
contract or pay for community-based resi- 
dential programs within any municipality 
to house unrelated persons who have been 
adjudicated delinquent of an act that 
would constitute a Class A felony or 
higher or of a sexual offense or convicted 
of a Class A felony or higher or sexual 
offense until the following conditions have 
been met: 

"1. Residents within one thousand 
(1,000) feet of the proposed location of the 
facility shall be notified by mail; 

"2. A public hearing shall be conducted 
in the community of the proposed location 
of the facility by the contract provider at 
least ten (10) days in advance of the con- 
tract's effective date. Notice of the hearing 



shall be made by mail to each of the 
residents within 1,000 feet of the proposed 
location of the facility. The notification 
requirement shall not apply to already 
existing facilities at already existing loca- 
tions. 

"Provided further, upon establishment 
of such facilities within a particular mu- 
nicipality, the contract provider and the 
Department shall establish and imple- 
ment a system to receive and respond to 
complaints and questions from residents 
of such municipality. In the event the 
Department and the provider fail to pro- 
vide satisfactory communication as pro- 
vided in this section to the residents, such 
facility may be declared a public nuisance 
by the municipality. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



25-10-135. Youth services. 



A.C.R.C. Notes. Acts 2012, No. 218, 
§ 9, provided: "YOUTH SERVICES — 
COMMUNITY-BASED RESIDENTIAL 
PROGRAMS — RESTRICTIONS. The 
Department of Human Services shall not 
contract or pay for community-based resi- 
dential programs within any municipality 
to house unrelated persons who have been 
adjudicated delinquent of an act that 
would constitute a Class A felony or 
higher or of a sexual offense or convicted 
of a Class A felony or higher or sexual 
offense until the following conditions have 
been met: 

"1. Residents within one thousand 
(1,000) feet of the proposed location of the 
facility shall be notified by mail; 

"2. A public hearing shall be conducted 
in the community of the proposed location 
of the facility by the contract provider at 
least ten (10) days in advance of the con- 
tract's effective date. Notice of the hearing 



shall be made by mail to each of the 
residents within 1,000 feet of the proposed 
location of the facility. The notification 
requirement shall not apply to already 
existing facilities at already existing loca- 
tions. 

"Provided further, upon establishment 
of such facilities within a particular mu- 
nicipality, the contract provider and the 
Department shall establish and imple- 
ment a system to receive and respond to 
complaints and questions from residents 
of such municipality. In the event the 
Department and the provider fail to pro- 
vide satisfactory communication as pro- 
vided in this section to the residents, such 
facility may be declared a public nuisance 
by the municipality. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



353 



ARKANSAS DEPT. OF ENVIRONMENTAL QUALITY 25-10-401 



Subchapter 4 — Department of Human Services State Institutional 

System 



25-10-401. Creation. 

A.C.R.C. Notes. Acts 2012, No. 251, 
§ 21, provides: "ARKANSAS HEALTH 
CENTER. 

"(A) The Department of Human Ser- 
vices shall not close the Arkansas Health 
Center that provides skilled nursing 
through specialized services and pro- 
grams. 

"(B) The Department of Human Ser- 
vices shall continue to accept clients for 
whom it has determined that skilled nurs- 
ing and specialized services are needed at 
the Arkansas Health Center. 

"(C) No funds shall be transferred or 
reduced from the Arkansas Health Center, 
except for use as federal matching funds, 
below the approved funding level on 
March 1, 2003 without the prior approval 
of the Arkansas Legislative Council or the 
Joint Budget Committee. 

"(D) Determining the maximum 
amount of appropriation and general rev- 
enue funding for a state agency each fiscal 
year is the prerogative of the General 
Assembly. This is usually accomplished by 
delineating such maximums in the appro- 



priation act(s) for a state agency and the 
general revenue allocations authorized for 
each fund and fund account by amend- 
ment to the Revenue Stabilization law. 
Further, the General Assembly has deter- 
mined that the Department of Human 
Services may operate more efficiently if 
some flexibility is provided to the Depart- 
ment of Human Services authorizing 
broad powers under this Section. There- 
fore, it is both necessary and appropriate 
that the General Assembly maintain over- 
sight by requiring prior approval of the 
Legislative Council or Joint Budget Com- 
mittee as provided by this section. The 
requirement of approval by the Legisla- 
tive Council or Joint Budget Committee is 
not a severable part of this section. If the 
requirement of approval by the Legisla- 
tive Council or Joint Budget Committee is 
ruled unconstitutional by a court of com- 
petent jurisdiction, this entire section is 
void. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 13 
DEPARTMENT OF PARKS AND TOURISM 



A.C.R.C. Notes. Acts 2012, No. 116, 
§ 24, provided: "CASH PRIZES — STATE 
PARKS. The Department of Parks & Tour- 
ism is hereby authorized to award mer- 
chandise, gift certificates and cash prizes 
to contestants in various special events 
authorized by the Director of State Parks. 
Such prizes may be awarded to the 1st, 



2nd and 3rd prize winners and shall be 
payable from the maintenance and opera- 
tion line item of the Parks Cash Fund. The 
cash prizes, in aggregate, for all contests, 
shall not exceed $10,000 per fiscal year. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 14 

ARKANSAS DEPARTMENT OF ENVIRONMENTAL 

QUALITY 



A.C.R.C. Notes. Acts 2012, No. 274, 
§ 43, provided: "ARKANSAS PUBLIC 
SCHOOL ACADEMIC FACILITIES PRO- 



GRAM. The Arkansas Department of En- 
vironmental Quality shall adopt policies 
before September 1, 2012 to ensure its 



25-15-202 



STATE GOVERNMENT 



354 



cooperation regarding provision to the Di- 
vision of Public School Academic Facilities 
and Transportation copies of the reports of 
inspections required under Arkansas 



Code § 6-21-813 (d) through (f) for the 
Arkansas Public School Academic Facili- 
ties Program Act." 



CHAPTER 15 
ADMINISTRATIVE PROCEDURES 

Subchapter 2 — Administrative Procedure Act 



25-15-202. Definitions. 



CASE NOTES 



Adjudication. 

State employee's appeal from her termi- 
nation by a state school for the deaf could 
not be heard due to lack of jurisdiction 
because there was no judicial review of 
such termination decisions absent a pub- 
lic policy exception; such decisions were 



legislative rather than adjudicatory. The 
school's alleged violation of its non-man- 
datory reduction policy did not rise to the 
level of a public policy violation. Tripcony 
v. Ark. Sch. for the Deaf, 2012 Ark. 188, — 
S.W.3d — (2012). 



25-15-210. Administrative adjudication — Decisions. 

CASE NOTES 



Findings and Conclusions. 

Because the Arkansas Health Services 
Permit Commission did not set forth any 
findings of fact or conclusions of law to 
support its decision to grant the transfer 
of a permit of approval, in accordance with 
subdivision (b)(2) of this section, the mat- 
ter had to be remanded. Twin Rivers 
Health & Rehab, LLC v. Ark. Health 
Servs. Permit Comm'n, 2012 Ark. 15, — 
S.W.3d — (2012). 



Because the Arkansas Motor Vehicle 
Commission failed in its obligation to 
make sufficient findings of fact relevant to 
the contested issue of what constituted 
the current model year, the supreme court 
could not determine whether the Commis- 
sion had resolved that issue in conformity 
with the law. Voltage Vehicles v. Ark. Mo- 
tor Vehicle Comm'n, 2012 Ark. 386, — 
S.W.3d — (2012). 



25-15-212. Administrative adjudication — Judicial review. 

CASE NOTES 



Analysis 

Applicability. 

Adjudication. 

Appeal from Circuit Court. 

Illustrative Case. 

Jurisdiction. 

Procedural Irregularities. 

Scope of Review. 



Applicability. 

Although a local utility customer failed 
to file a notice of appeal to the circuit court 
as required under Ark. Dist. Ct. R. 9, 
which applied to an appeal from the mu- 
nicipal utility's decision, but instead filed 
a complaint alleging that it was seeking 
judicial review of a final administrative 
order, the complaint properly described 



355 



ADMINISTRATIVE PROCEDURES 



25-15-212 



the final administrative decision and 
specified the date of that decision as re- 
quired. Mt. Pure, LLC v. Little Rock 
Wastewater UtiL, 2011 Ark. 258, — 
S.W.3d — (2011). 

Adjudication. 

State employee's appeal from her termi- 
nation by a state school for the deaf could 
not be heard due to lack of jurisdiction 
because there was no judicial review of 
such termination decisions absent a pub- 
lic policy exception; such decisions were 
legislative rather than adjudicatory. The 
school's alleged violation of its non-man- 
datory reduction policy did not rise to the 
level of a public policy violation. Tripcony 
v. Ark. Sch. for the Deaf, 2012 Ark. 188, — 
S.W.3d — (2012). 

Appeal from Circuit Court. 

Because an appraiser's argument that 
the circuit court erred in determining that 
she was not permitted to present addi- 
tional evidence before the agency pursu- 
ant to the Arkansas Administrative Pro- 
cedure Act, subsection (f) of this section 
was not ruled on by the Arkansas Ap- 
praiser Licensing and Certification Board; 
the supreme court was precluded from 
considering the argument on appeal; at 
the circuit court's hearing, the appraiser 
requested the circuit court to remand the 
case to present additional evidence pursu- 
ant to subsection (f), but she failed to 
obtain a ruling on the issue. Chandler v. 
Ark. Appraiser Licensing & Certification 
Bd., 2011 Ark. 519, — S.W.3d — (2011). 

Illustrative Case. 

Approval of a private-club permit was 
proper because a club established that it 
had a nonprofit purpose other than the 
consumption of alcohol under § 3-9- 
202(12)(A)(i) where it operated in conjunc- 
tion with a restaurant and was designed 
to enhance the dining experience. More- 
over, the Arkansas Alcoholic Beverage 
Control Division Board's interpretation of 
§ 3-9-202(12)(A)(i) was entitled to defer- 
ence, and arguments relating to nonprofit 
status that were not fully developed be- 
fore the Board were not preserved for 
appellate review. Barnes v. Ark. Dep't of 



Fin. & Admin., 2012 Ark. App. 237, — 
S.W.3d — (2012). 

Jurisdiction. 

Reviewing court lacked jurisdiction to 
consider the supplier's appeal, because 
the circuit court lacked subject-matter ju- 
risdiction over the matter, when the deci- 
sion of the Office of State Procurement did 
not emanate from a hearing and the Office 
did not issue an order containing any 
findings of fact; administratively, the Of- 
fice merely determined that the supplier's 
protest could not be heard, therefore, the 
decision did not come within the purview 
of the Arkansas Administrative Procedure 
Act, and thus the circuit court lacked 
jurisdiction to review it. Fatpipe, Inc. v. 
State, 2012 Ark. 248, — S.W.3d — (2012). 

Procedural Irregularities. 

Issuance of a commercial disposal well 
permit was made upon unlawful proce- 
dure and was thus subject to reversal 
under subdivision (h)(3) of this section 
because the Arkansas Oil and Gas Com- 
mission failed to comply with its own rules 
pursuant to § 15-71-lll(a)(3) when it did 
not require timely proof of financial assur- 
ance under Ark. Oil & Gas Comm'n Rule 
H-l. Capstone Oilfield Disposal of Ark., 
Inc. v. Pope County, 2012 Ark. App. 231, — 
S.W.3d — (2012). 

Scope of Review. 

Because the Capitol Zoning District 
Commission's decision denying a property 
owner's application to install a 48-inch- 
high fence was supported by substantial 
evidence, it was not arbitrary and capri- 
cious. Capitol Zoning Dist. Comm'n v. 
Cowan, 2012 Ark. App. 619, — S.W.3d — , 
2012 Ark. App. LEXIS 732 (Oct. 31, 2012). 

There was substantial evidence to sup- 
port the Capitol Zoning District Commis- 
sion's decision denying a property owner's 
application to install a 48-inch-high fence. 
The owner's property was one of the most 
historic residences in all of Arkansas, and 
surrounding properties traditionally had 
fences at or under 40 inches in height. 
Capitol Zoning Dist. Comm'n v. Cowan, 
2012 Ark. App. 619, — S.W.3d — , 2012 
Ark. App. LEXIS 732 (Oct. 31, 2012). 



25-15-213 STATE GOVERNMENT 

25-15-213. Hearings generally. 

CASE NOTES 



356 



Cited: Capstone Oilfield Disposal of 
Ark., Inc. v. Pope County, 2012 Ark. App. 
231, — S.W.Sd — (2012). 



CHAPTER 16 
STATE OFFICERS 

Subchapter 7 — Attorney General 



A.C.R.C. Notes. Acts 2012, No. 273, 
§ 19, provided: "QUARTERLY RE- 
PORTS. The Office of Attorney General 
shall on a quarterly basis provide to the 
Arkansas Legislative Council or Joint 
Budget Committee a report of all cash 
funds received from court orders or settle- 
ment agreements. The report shall in- 
clude: 

"a) The case name of the court order or 
settlement agreement. 

"b) The amount of funds received by the 
Office of Attorney General for each court 
order or settlement agreement. 

"c) A plan for disbursement of the funds. 
If cash funds received from a court order 
or settlement agreement are expended for 
any purpose, including consumer educa- 
tion and enforcement activities, the report 
must itemize specific activities subject to 
the exclusions provided in Ark. Code Ann. 
4-88-111 and 25-l-403(l)(B). The report 
shall also itemize the specific consumer 
education and enforcement activities 
funded for the Office of Attorney General. 

"d) If funds received from court order or 
settlement agreement are given to a spe- 
cific entity by the Office of Attorney Gen- 
eral the report must include: 



"1) If the court order or settlement 
agreement directed monies to be given to 
a specific entity and; 

"2) If the court order or settlement 
agreement directs funds to a specific en- 
tity, the Office of the Attorney General 
shall provide a summary of input regard- 
ing the drafting of the court order or 
settlement agreement. 

"e) If the Office of Attorney General 
receives funds from a court order or settle- 
ment agreement that does not require 
disbursement of funds to a specific entity, 
the Office of Attorney General shall report 
a rationale for disbursing funds to a spe- 
cific entity. 

"f) A report of current balances of all 
unappropriated cash fund holdings re- 
ceived by court order or settlement agree- 
ment by the Office of Attorney General. 

"g) The quarterly reports shall be pro- 
vided no later than the 15th day of the 
month immediately following the end of 
each quarter. 

"The provisions of this section shall be 
in effect only from July 1, 2012 through 
June 30, 2013." 



CHAPTER 19 
FREEDOM OF INFORMATION ACT OF 1967 



SECTION. 

25-19-105. 



Examination and copying 
public records. 



of 



357 FREEDOM OF INFORMATION ACT OF 1967 

25-19-101. Title. 

CASE NOTES 



25-19-105 



Analysis 

Appellate Review. 
Public Records. 

Appellate Review. 

Circuit court denied appellant's com- 
plaint against a police department and its 
police chief for violation of the Freedom of 
Information Act (FOIA). Upon reviewing 
the FOIA request that appellant submit- 
ted, the appellate court concluded that the 
circuit court's finding that the police chief 
acted in good faith was not clearly errone- 
ous. Daugherty v. Sipes, 2012 Ark. App. 
233, — S.W.3d — (2012). 

Public Records. 

Litigation files prepared by an attorney 
hired by private medical malpractice li- 

25-19-104. Penalty. 



ability insurance carriers to represent 
three doctors who worked for the state 
university were not subject to disclosure 
under the Freedom of Information Act, 
§§ 25-19-101 to 25-19-110, because the 
documents were not public records for 
purposes of subdivision (a)(1)(A) of this 
section. As the doctors were sued in their 
personal capacity, simply changing the 
records request to name the doctors in 
their official capacity did not convert the 
documents from private to public; the 
documents were also attorney work-prod- 
uct and subject to the attorney-client 
privilege. Harrill & Sutter, PLLC v. Far- 
rar, 2012 Ark. 180, — S.W.3d — (2012). 



CASE NOTES 



Analysis 

In General. 
No Violation. 

In General. 

Circuit court's determination that this 
section and § 25-19-106 were unconstitu- 
tional was improper because declaratory 
relief was inappropriate under this sec- 
tion as appellees did not yet have a case or 
controversy ready for decision by the 
courts. Appellees received a legal opinion 
on the effects of certain provisions of the 
state's Freedom of Information Act rather 



than resolution of an actual controversy. 
McCutchen v. City of Fort Smith, 2012 
Ark. 452, — S.W.3d — , 2012 Ark. LEXIS 
485 (Dec. 6, 2012). 

No Violation. 

Appellees' actions of purging the re- 
cords did not violate this section because 
the captain testified that it was police 
department policy to purge the recordings 
every 45 days in order to maintain suffi- 
cient memory on the server and the driver 
did not produce any evidence to the con- 
trary. Daugherty v. Jacksonville Police 
Dep't, 2012 Ark. 264, — S.W.3d — (2012). 



25-19-105. Examination and copying of public records. 

(a)(1)(A) Except as otherwise specifically provided by this section or 
by laws specifically enacted to provide otherwise, all public records 
shall be open to inspection and copying by any citizen of the State of 
Arkansas during the regular business hours of the custodian of the 
records. 

(B) However, access to inspect and copy public records shall be 
denied to: 



25-19-105 STATE GOVERNMENT 358 

(i) A person who at the time of the request has pleaded guilty to or 
been found guilty of a felony and is incarcerated in a correctional 
facility; and 

(ii) The representative of a person under subdivision (a)(l)(B)(i) of 
this section unless the representative is the person's attorney who is 
requesting information that is subject to disclosure under this 
section. 

(2)(A) A citizen may make a request to the custodian to inspect, copy, 
or receive copies of public records. 

(B) The request may be made in person, by telephone, by mail, by 
facsimile transmission, by electronic mail, or by other electronic 
means provided by the custodian. 

(C) The request shall be sufficiently specific to enable the custo- 
dian to locate the records with reasonable effort. 

(3) If the person to whom the request is directed is not the custodian 
of the records, the person shall so notify the requester and identify the 
custodian, if known to or readily ascertainable by the person. 

(b) It is the specific intent of this section that the following shall not 
be deemed to be made open to the public under the provisions of this 
chapter: 

(1) State income tax records; 

(2) Medical records, adoption records, and education records as 
defined in the Family Educational Rights and Privacy Act of 1974, 20 
U.S.C. § 1232g, unless their disclosure is consistent with the provisions 
of that act; 

(3) The site files and records maintained by the Arkansas Historic 
Preservation Program of the Department of Arkansas Heritage and the 
Arkansas Archeological Survey; 

(4) Grand jury minutes; 

(5) Unpublished drafts of judicial or quasi-judicial opinions and 
decisions; 

(6) Undisclosed investigations by law enforcement agencies of sus- 
pected criminal activity; 

(7) Unpublished memoranda, working papers, and correspondence of 
the Governor, members of the General Assembly, Supreme Court 
Justices, Court of Appeals Judges, and the Attorney General; 

(8) Documents that are protected from disclosure by order or rule of 
court; 

(9)(A) Files that if disclosed would give advantage to competitors or 
bidders; and 

(B)(i) Records maintained by the Arkansas Economic Development 
Commission related to any business entity's planning, site location, 
expansion, operations, or product development and marketing, un- 
less approval for release of those records is granted by the business 
entity. 

(ii) However, this exemption shall not be applicable to any records 
of expenditures or grants made or administered by the commission 
and otherwise disclosable under the provisions of this chapter; 



359 FREEDOM OF INFORMATION ACT OF 1967 25-19-105 

(10)(A) The identities of law enforcement officers currently working 
undercover with their agencies and identified in the Arkansas Mini- 
mum Standards Office as undercover officers. 

(B) Records of the number of undercover officers and agency lists 
are not exempt from this chapter; 

(11) Records containing measures, procedures, instructions, or re- 
lated data used to cause a computer or a computer system or network, 
including telecommunication networks or applications thereon, to per- 
form security functions, including, but not limited to, passwords, 
personal identification numbers, transaction authorization mecha- 
nisms, and other means of preventing access to computers, computer 
systems or networks, or any data residing therein; 

(12) Personnel records to the extent that disclosure would constitute 
a clearly unwarranted invasion of personal privacy; 

(13) Home addresses of nonelected state employees, nonelected mu- 
nicipal employees, and nonelected county employees contained in 
employer records, except that the custodian of the records shall verify 
an employee's city or county of residence or address on record upon 
request; 

(14) Materials, information, examinations, and answers to examina- 
tions utilized by boards and commissions for purposes of testing 
applicants for licensure by state boards or commissions; 

(15) Military service discharge records or DD Form 214, the Certifi- 
cate of Release or Discharge from Active Duty of the United States 
Department of Defense, filed with the county recorder as provided 
under § 14-2-102, for veterans discharged from service less than 
seventy (70) years from the current date; 

(16) Vulnerability assessments submitted by a public water system 
on or before June 30, 2004, to the Administrator of the United States 
Environmental Protection Agency for a period often (10) years from the 
date of submission; 

(17)(A) Records, including analyses, investigations, studies, reports, 
or recommendations, containing information relating to any Depart- 
ment of Human Services risk or security assessment, known or 
suspected security vulnerability, or safeguard related to compliance 
with the Health Insurance Portability and Accountability Act of 1996 
or protection of other confidential department information. 

(B) The records shall include: 

(i) Risk and security assessments; 

(ii) Plans and proposals for preventing and mitigating privacy and 
security risks; 

(hi) Emergency response and recovery records; 

(iv) Privacy and security plans and procedures; and 

(v) Any other records containing information that if disclosed 
might jeopardize or compromise efforts to secure and protect personal 
health information or other protected department information. 

(C) This subdivision (b)(17) expires on July 1, 2009. 

(18)(A) Records, including analyses, investigations, studies, reports, 
recommendations, requests for proposals, drawings, diagrams, blue- 



25-19-105 STATE GOVERNMENT 360 

prints, and plans, containing information relating to security for any 
public water system. 

(B) The records shall include: 

(i) Risk and vulnerability assessments; 

(ii) Plans and proposals for preventing and mitigating security 
risks; 

(iii) Emergency response and recovery records; 

(iv) Security plans and procedures; and 

(v) Any other records containing information that if disclosed 
might jeopardize or compromise efforts to secure and protect the 
public water system. 

(C) This subdivision (b)(18) expires on July 1, 2013. 

(19) Records pertaining to the issuance, renewal, expiration, suspen- 
sion, or revocation of a license to carry a concealed handgun, or a 
present or past licensee under § 5-73-301 et seq., including without 
limitation all records provided to or obtained by any local, state, or 
federal governments, their officials, agents, or employees in the inves- 
tigation of an applicant, licensee, or past licensee and all records 
pertaining to a criminal or health history check conducted on the 
applicant, licensee, or past licensee except that: 

(A) Information or other records regarding an applicant, licensee, 
or past licensee may be released to a law enforcement agency for the 
purpose of assisting in a criminal investigation or prosecution, or for 
determining validity of or eligibility for a license; 

(B) Names of an applicant, licensee, or past licensee may be 
released as contained in investigative or arrest reports of law 
enforcement that are subject to release as public records; and 

(C) The name and the corresponding zip code of an applicant, 
licensee, or past licensee may be released upon request by a citizen of 
Arkansas. 

(c)(1) Notwithstanding subdivision (b)(12) of this section, all em- 
ployee evaluation or job performance records, including preliminary 
notes and other materials, shall be open to public inspection only upon 
final administrative resolution of any suspension or termination pro- 
ceeding at which the records form a basis for the decision to suspend or 
terminate the employee and if there is a compelling public interest in 
their disclosure. 

(2) Any personnel or evaluation records exempt from disclosure 
under this chapter shall nonetheless be made available to the person 
about whom the records are maintained or to that person's designated 
representative. 

(3)(A) Upon receiving a request for the examination or copying of 
personnel or evaluation records, the custodian of the records shall 
determine within twenty-four (24) hours of the receipt of the request 
whether the records are exempt from disclosure and make efforts to 
the fullest extent possible to notify the person making the request 
and the subject of the records of that decision. 

(B)(i) If the subject of the records cannot be contacted in person or 
by telephone within the twenty-four-hour period, the custodian shall 



361 FREEDOM OF INFORMATION ACT OF 1967 25-19-105 

send written notice via overnight mail to the subject of the records at 
his or her last known address. Either the custodian, requester, or the 
subject of the records may immediately seek an opinion from the 
Attorney General, who, within three (3) working days of receipt of the 
request, shall issue an opinion stating whether the decision is 
consistent with this chapter. 

(ii) In the event of a review by the Attorney General, the custodian 
shall not disclose the records until the Attorney General has issued 
his or her opinion. 

(C) However, nothing in this subsection shall be construed to 
prevent the requester or the subject of the records from seeking 
judicial review of the custodian's decision or the decision of the 
Attorney General. 
(d)(1) Reasonable access to public records and reasonable comforts 

and facilities for the full exercise of the right to inspect and copy those 

records shall not be denied to any citizen. 
(2)(A) Upon request and payment of a fee as provided in subdivision 
(d)(3) of this section, the custodian shall furnish copies of public 
records if the custodian has the necessary duplicating equipment. 

(B) A citizen may request a copy of a public record in any medium 
in which the record is readily available or in any format to which it is 
readily convertible with the custodian's existing software. 

(C) A custodian is not required to compile information or create a 
record in response to a request made under this section. 

(3)(A)(i) Except as provided in § 25-19-109 or by law, any fee for 
copies shall not exceed the actual costs of reproduction, including the 
costs of the medium of reproduction, supplies, equipment, and 
maintenance, but not including existing agency personnel time 
associated with searching for, retrieving, reviewing, or copying the 
records. 

(ii) The custodian may also charge the actual costs of mailing or 
transmitting the record by facsimile or other electronic means. 

(iii) If the estimated fee exceeds twenty-five dollars ($25.00), the 
custodian may require the requester to pay that fee in advance. 

(iv) Copies may be furnished without charge or at a reduced charge 
if the custodian determines that the records ha